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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1094 OF 2002
WITH
CRIMINAL APPEAL NOS.1151 & 1239 OF 2002
CRI.APPEAL N0.1094/02:
Umesh G. Patil,
R/o.Vitawa, Koliwada, Thane. ...Appellant.
Vs.
The State of Maharashtra,ig
(At the instance of Vadgaon
Maval Police Station. ...Respondents.
....
Mr.Harshad Bhadbhade for the Appellant.
Dr. F.R. Shaikh, APP for the Respondent.
.....
CRI.APPEAL N0.1151/02:
1. Sachin Eknath Rao,
Aged about 21 yrs., Occ. Labour.
2. Amit Eknath Rao,
aged about 20 yrs., Occ.Labour
& Fishery.
Both are residing at Vitava
Belapur Road, Bandrapada,
Gajanan Nagar, Dist.Thane.
(At present at Yeravade Jail
Pune. ...Appellants.
Vs.
1. The State of Maharashtra,
2. The Prosecutrix,
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aged about 18 years, residing at
Kopar Road, Dombivli. ...Respondents.
....
Mr. N.V. Pradhan for the Appellant.
Dr. F.R. Shaikh, APP for Respondent No.1.
CRI.APPEAL N0.1239/02:
Prashant G. Koli,
aged 19 years, Occ. Business,
R/o.Kalwa Vitawa, Koliwada,
(present undergoing sentence in
Yerawada Central Prison). ...Appellant.
Vs.
The State of Maharashtra. ...Respondent.
....
Mr.Milan Desai for the Appellant.
Dr. F.R. Shaikh, APP for the Respondent.
.....
CORAM : SWATANTER KUMAR, C.J. &
DR.D.Y.CHANDRACHUD, J.
April 16, 2009.
JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.) :
The prosecutrix was eighteen and lived with her parents
and three sisters. The house in which the family resided at Thane
was under construction. The prosecutrix had known Umesh Patil for
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five months. Umesh was constructing her house at Thane. During
the course of the construction, the family shifted to Dombivli to reside
with the prosecutrix’
s grandmother. The case of the prosecution is
that Snehal, who was a neighbour, had invited the prosecutrix for the
wedding of her brother which was to take place at Khopoli. On 5th
May 2001, the prosecutrix and her mother are alleged to have met
Umesh at Thane when he stated that he would hand over the work of
construction to another contractor since he had no time on his hands.
Umesh is alleged to have sought the permission of the prosecutrix’
s
mother to let her accompany him to Khopoli for the marriage. Umesh
is alleged to have collected a bag containing the prosecutrix’
s
belongings from her home at Dombivli and to have instructed her to
meet Sachin Gavate at an assigned place. Sachin was to accompany
her to Vitava. Sachin and the prosecutrix proceeded to Vitava where
Umesh Patil, Prashant Koli, Navnath and Sachin Rao were in a Sumo
Jeep. The group proceeded to Panvel Station where they met
another girl and Amit Rao. All of them are alleged to have proceeded
to the house of Snehal, where the wedding ceremony of her brother
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was to take place, between 7 and 7.30 p.m. After dinner, Umesh is
alleged to have told the prosecutrix that since Snehal’s house at
Khopoli was full of guests, they should go to Karla where he had a
bungalow. The entire group then proceeded to Karla and is alleged
to have halted at a bungalow by the name of Yamuna Niwas,
belonging to Umesh. The bungalow consisted of two bedrooms. The
prosecutrix was allegedly instructed by Umesh to rest in one bedroom
whereas the other girl was asked to proceed to a separate bedroom.
Umesh Patil and Amit Rao are alleged to have entered the
prosecutrix’
s bedroom sometime thereafter. The case of the
prosecution is that Umesh compelled the prosecutrix to remove her
clothes under threat. The prosecutrix is stated to have removed her
clothes except for her under garment which Umesh removed. The
case of the prosecution is that Umesh Patil and Amit Rao raped her
repeatedly and also indulged in anal intercourse. The other accused
– Prashant and Sachin are similarly alleged to have raped the
prosecutrix and to have indulged in anal intercourse. The prosecutrix
was subjected to this ordeal from 11.30 p.m. to 4.30 a.m. The
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prosecutrix, according to the prosecution, is alleged to have resisted
and to have shouted whereupon the girl in the bedroom next door is
alleged to have shouted out, requesting the accused to desist. The
prosecutrix is alleged to have fallen asleep after 4.30 a.m. When she
woke up at 7.30 a.m., she had intense pain in the stomach. By then,
all the accused except Navnath, had left. Navnath is alleged to have
informed the prosecutrix that all the others and the girl who was with
them had left the bungalow. Navnath summoned a doctor who
examined the prosecutrix and gave her some preliminary treatment.
the prosecutrix is alleged to have been unable to move on 6th May
2001. On the next day – 7th May 2001 – the prosecutrix, accompanied
by Navnath, took an auto to Lonawala Station and then proceeded by
train to Dombivli. She reached home between 4 and 4.30 p.m. on 7th
May 2001.
2. The prosecutrix is alleged to have complained about a
recurring pain in the stomach to her mother and when the pain did not
subside, a doctor – Dr.Jain – was summoned at about 7 p.m. Dr.Jain,
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in turn, gave a note to Dr.Shirodkar to whose Hospital the prosecutrix
was taken at about 10 p.m. Dr.Shirodkar advised that surgery was
necessary and accordingly a surgery was conducted on the
prosecutrix. On 7th May 2001, Dr.Shirodkar found that the prosecutrix
had suffered a perforation of the terminal part of the rectum. An
emergency colostomy was performed involving a removal of the
terminal part of the large intestine from the abdomen so that it could
serve the purpose of a temporary anus. The prosecutrix was in
Hospital until 28th June 2001. According to the prosecution, after
several days in the Hospital, when Dr.Shirodkar had secured her
confidence, the prosecutrix disclosed to him the incident which had
taken place and the names of the accused. On being informed by the
prosecutrix that she had been subjected to rape and anal intercourse,
Dr.Shirodkar informed the Police. The prosecutrix’
s statement was
recorded on 31st May 2001. A supplementary statement was
recorded on 1st June 2001. Sachin Gavate was arrested on 3rd June
2001. A chargesheet was initially filed against three of the accused –
Sachin Rao, Amit Rao and Navnath. The accused were committed to
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stand trial before the Additional Sessions Judge at Pune. Accused
Umesh Patil and Prashant were absconding. Sachin Gavate was a
juvenile offender and he was transferred to the Juvenile Court.
Prashant was arrested on 18th February 2002 at the Sessions Court at
Shivaji Nagar, Pune. Umesh Patil appeared before the High Court on
29th January 2002 when he was arrested. Upon the arrest of Umesh
and Prashant, a supplementary chargesheet was filed for offences
punishable under Sections 363, 366, 342, 323, 376(2)(g), 307, 504
and 506 read with Section 34 of the Penal Code.
3. The prosecution adduced the evidence of thirteen
witnesses. Among them was PW 1 Dr. M.V. Shirodkar, who had
examined the prosecutrix and had informed the Police upon receiving
information from her of the offence. PW 2 Dr.Nagabhushanam had
performed the surgical operation on the prosecutrix. PW 3 Dr.Jain
had examined the prosecutrix and had referred her to Dr.Shirodkar for
medical treatment. PW 4 and 5 were Panch Witnesses. PW 7
Snehal was the friend of the prosecutrix in whose house the wedding
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had taken place. PW 9 Bendre was the PSI who had arrested some of
the accused. PW 10 Nanawade was the PSI who had recorded the
FIR. Dr.Samir Pawar, PW 11 had examined the prosecutrix in the
Sassoon Hospital. PWs 12 and 13 were the Investigating Officers.
4. By his judgment dated 17th September 2002, the Additional
Sessions Judge at Pune convicted Umesh Patil (Accused No.1),
Prashant Koli (Accused No.2), Sachin Rao (Accused No.3) and Amit
Rao (Accused No.4) for offences punishable under Sections 376(2)
(g), 377 and 323 read with Section 34 of the Penal Code. The
accused were sentenced to suffer imprisonment for life and to pay a
fine of Rs.5,000/- each for the offence punishable under Section 376
(2)(g). The accused were sentenced to suffer simple imprisonment
for ten years and to a fine of Rs.2,000/- each in respect of the offence
punishable under Section 377 read with Section 34 of the Penal
Code. Both the sentences were directed to run concurrently. The
fine recovered from the accused was directed to be paid over to the
prosecutrix. Accused Navnath was acquitted of the charge.
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5. There are three appeals before the Court, namely those by
Umesh Patil (Accused No.1), Prashant Koli (Accused No.2) and
Sachin Rao (Accused No.3). On behalf of the Appellants, it has been
submitted that (i) No offence is disclosed under Section 376(2)(g)
and if at all, an offence would be made out only under Section 377 of
the Penal Code; (ii) The conduct of the prosecutrix does not inspire
confidence and there are several discrepancies in her deposition; (iii)
Accused Amit had pleaded an alibi, but there is no discussion thereon
in the judgment of the Trial Court; (iv) The prosecution had failed to
examine the girl who is alleged to have accompanied the group to the
bungalow of Umesh Patil at Karla; and (v) The doctor who had
administered medical aid to the prosecutrix in the first instance had
not been examined.
6. The principal thrust of the submissions before the Court is
that there are improbabilities in the case of the prosecution. It has
been submitted that the prosecutrix had known accused Umesh for
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about five months prior to the date of the alleged incident and she
deposed that she had not been accustomed to reside at the house of
any friend. It was submitted that in such a situation, the parents of the
girl would not allow her to proceed with a stranger. Snehal, PW 7, at
whose home the wedding was to take place of her brother was not a
close friend of the prosecutrix and did not even know Umesh. The
other girl who had accompanied the group of persons was not
described and the prosecutrix admitted that she had not furnished her
name though the Police had so enquired. On the other hand, the
Investigating Officer, PW 13 deposed that the other girl was a
prostitute and could not be found. It was submitted that though the
other girl was not traceable, it was a mystery as to how the
Investigating Officer had traced information about her profession.
7. While dealing with the submissions which have been urged
on behalf of the Appellants, it would be necessary to advert to the
evidence of the prosecutrix, PW 6 – the prosecutrix. the prosecutrix
deposed that she had come to know Umesh Patil about five months
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earlier since he had undertaken the job of constructing her family
house at Thane. the prosecutrix had received an invitation from a
friend Snehal, PW 7, to attend the wedding of her brother which was
to be performed at Khopoli. the prosecutrix is alleged to have
accompanied Umesh Patil to Khopoli together with the other accused
Appellants, namely, Prashant Koli and Sachin Rao. Besides the three
accused who are the Appellants before the Court, the group consisted
of Sachin who was a juvenile offender, Amit Rao, Navnath and
another girl. The prosecutrix deposed that the entire group reached
Snehal’
s house between 7 and 7.30 p.m. and after dinner, Umesh
suggested that they should proceed to his bungalow at Karla since
there were several guests in the house where wedding was to take
place. The prosecutrix has deposed to the events that transpired
between 11.30 p.m. when the group reached Karla and 4.30 a.m.
when she fell asleep. The prosecutrix named the Appellants – Umesh
Patil, Prashant Koli and Sachin Rao – among others, as persons who
had repeatedly in succession, raped her and subjected her to anal
intercourse. Accused Umesh had, according to the prosecutrix,
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inserted a candle in her anus while he was raping her. The
prosecutrix identified all the three Appellants before the Court. The
prosecutrix and all the three Appellants were together from the time
that she met them at Vitava and proceeded thereafter to Khopoli and
from there to the bungalow of Umesh at Karla. She was clearly in a
position to identify them and has as a matter of fact identified the
Appellants.
8. The nature of the injuries that were sustained by the
prosecutrix has emerged from the medical evidence on record and
inter alia from the deposition of the medical witnesses. After the
incident took place on the night between 5th and 6th May 2001, the
prosecutrix deposed that she was unable to move on 6th May 2001.
On 7th May 2001, she was brought home by Navnath to Dombivli and
a doctor was summoned at about 7 p.m. The doctor in question,
Dr.Subhash Jain, deposed in evidence as PW 3 and stated that the
prosecutrix was complaining of pain in her abdomen and of bleeding
from the rectum. On examining her, PW 3 noted that she had already
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been treated earlier by a doctor and since her condition was serious,
he advised that she should be admitted to Hospital. The prosecutrix
was thereafter taken to the Hospital of Dr.Shirodkar, PW 1. PW 1
stated that upon examining her, he found that the prosecutrix was
toxic, her pulse rate was high; the abdomen was rigid and there was
rebound tenderness all over the abdomen. An X-ray was taken and
an emergency surgery was carried out since it was found that there
was a perforation in the terminal part of the rectum. The surgery
involved the removal of the terminal part of the large intestine to serve
the purpose of a temporary anal canal. The prosecutrix was in
Hospital until 28th June 2001.
9. PW 1, Dr.Shirodkar, deposed that while the prosecutrix was
in the Hospital, he had noticed that she was having what he described
as “funny injuries” and though he had asked her about them, she
had not disclosed anything. After ten to fifteen days after surgery,
the prosecutrix revealed the entire background of the case to P.W. 1
including the incident during the course of which she had been raped
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repeatedly and had been subjected to anal intercourse. PW 1
thereupon informed the Police immediately. He stated that she had
disclosed to him the names of the persons who had participated in the
assault. The Police thereupon visited the Hospital and the statement
of the prosecutrix was recorded by PW 13, Sushil Kadam, who was
the API attached to the Police Station in Lonavala. A spot
panchanama was prepared (Exh.51). The initial statement of the
prosecutrix was recorded on 31st May 2001. In a case such as the
present, the time that has elapsed between the date of the incident
and the recording of the first statement of the prosecutrix must be
assessed with reference to her medical condition. The prosecutrix
had suffered serious injuries resulting in a perforation of her intestine.
An emergency surgery was performed on her, which required her
hospitalisation until 28th June 2001. In such a situation, it is natural for
the victim of a serious sexual assault involving a gang rape and
forcible anal intercourse to be traumatised by the incident and by the
injuries sustained by her. The injuries in this case were serious. A
realistic view has to be formed of the physical pain endured by the
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prosecutrix. Added to that is the social stigma, revulsion and fear of
consequences. The law is not obivious to these facets. It is but
natural that the treating doctor, PW 1 had to gain the confidence of
the prosecutrix over a period of time and it is only thereafter that she
proceeded to divulge the full details to him. In the first statement that
was recorded on 31st May 2001, the prosecutrix referred to all the
accused as being involved in the sexual assault on the night between
5th and 6th May 2001. In the first statement, the prosecutrix referred to
the accused as having indulged in anal intercourse with her. In the
second statement (Exh.53), the prosecutrix has stated that besides
engaging in anal intercourse, the accused had subjected her to rape
repeatedly. The first and the second statements are recorded
proximate in time, barely within a day of each other. The prosecutrix
is evidently not a tutored witness. The nature of the trauma suffered
by her, the serious injuries that were sustained and the surgical
intervention required to rectify the situation must be borne in mind in
determining as to whether the prosecutrix should be believed on the
point of rape. The prosecutrix was examined at the Sassoon General
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Hospital in Pune by P.W. 11 Dr.Samir Pawar whose evidence also
confirmed that a colostomy had been performed on her. The
prosecutrix disclosed to him that she had been taken to a bungalow
near Lonavala where she was threatened and subjected to repeated
anal penetrative intercourse. On examination, PW 11 found that the
hymen was torn and a PV examination could be possible. The
findings of the medical examination are consistent both with rape and
forcible anal intercourse. The medical papers were produced and
marked in evidence as Exh.73. P.W. 2 Dr.Nagbhushanam was the
Resident Medical Officer at the KEM Hospital, Mumbai where the
prosecutrix was admitted on 14th November 2001. The prosecutrix
was once again operated upon on 15th November 2001 by Dr.Kashid
and was discharged on 2nd December 2001.
10. The law in regard to the manner in which the evidence of
the victim of a sexual assault should be evaluated has been
elaborated upon by the Supreme Court in Ranjit Harika vs. State of
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Assam.1 The Supreme Court has held thus :
“The Courts must, while evaluating evidence, remain alive
to the fact that in a case of rape, no self-respecting womanwould come forward in a court just to make a humiliating
statement against her honour such as is involved in the
commission of rape on her. In cases involving sexual
molestation supposed considerations which have nomaterial effect on the veracity of the prosecution case or
even discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such which are of
fatal nature, be allowed to throw out an otherwise reliableprosecution case. The inherent bashfulness of the females
and the tendency to conceal outrage of sexual aggressionare factors which the courts should not overlook. The
testimony of the victim in such cases is vital and unlessthere are compelling reasons which necessitate looking for
corroboration of her statement, the courts should find no
difficulty to act on the testimony of a victim of sexual assault
alone to convict an accused where her testimony inspiresconfidence and is found to be reliable. Seeking
corroboration of her statement before relying upon thesame, as a rule, in such cases amounts to adding insult to
injury. Why should the evidence of a girl or a woman who
complains of rape or sexual molestation be viewed with
doubt, disbelief or suspicious? The court while appreciatingthe evidence of a prosecutrix may look for some assurance
of her statement to satisfy its judicial conscience, since she
is a witness who is interested in the outcome of the charge
levelled by her, but there is no requirement of law to insistupon corroboration of her statement to base conviction of
an accused. The evidence of a victim of sexual assault
stands almost on a par with the evidence of an injured
witness and to an extent is even more reliable. Just as a1 (1998) 8 SCC 635
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18witness who has sustained some injury in the occurrence,
which is not found to be self-inflicted, is considered to be agood witness in the sense that he is least likely to shield the
real culprit, the evidence of a victim of a sexual offence isentitled to great weight, absence of corroboration
notwithstanding. Corroborative evidence is not an
imperative component of judicial credence in every case of
rape. Corroboration as a condition for judicial reliance onthe testimony of the prosecutrix is not a requirement of law
but a guidance of prudence under given circumstances. It
must not be overlooked that a woman or a girl subjected to
sexual assault is not an accomplice to the crime but is avictim of another person’ s lust and it is improper and
undesirable to test her evidence with a certain amount ofsuspicion, treating her as if she were an accomplice.
Inferences have to be drawn from a given set of facts andcircumstances with realistic diversity and not dead
uniformity lest that type of rigidity in the shape of rule of law
is introduced through a new form of testimonial tyranny
making justice a casualty. Courts cannot cling to a fossilformula and insist upon corroboration even if, taken as a
whole, the case spoken of by the victim of sex crime strikethe judicial mind as probable.”
These principles have been reiterated in Rajoo vs. State of M.P.2
The Supreme Court has observed that the broad principle is that an
injured witness was present at the time when the incident happened
and ordinarily such a witness would not lie as to the name of the
actual assailant. But there is no presumption that the statement of
2 2008 AIR SCW 8165
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such a witness is always correct or without an ambiguity or
exaggeration. Obviously such a statement cannot be regarded as
reflective of gospel truth.
11. In State of Punjab vs. Ramdev Singh,3 the Supreme Court
held thus:
“14. It is well settled that a prosecutrix complaining of
having been a victim of the offence of rape is not anaccomplice after the crime. There is no rule of law that her
testimony cannot be acted upon without corroboration inmaterial particulars. She stands on a higher pedestal than
an injured witness. In the latter case, there is injury on thephysical form, while in the former, it is both physical as well
as psychological and emotional. However, if the court of
facts finds it difficult to accept the version of the prosecutrix
on its face value, it may search for evidence, direct orcircumstantial, which would lend assurance to her
testimony. Assurance, short of corroboration, asunderstood in the context of an accomplice would do.”
12. In the present case, not merely is the prosecutrix in the
position of an injured witness in the sense that she was subjected to a
violation of the dignity of her being, but she is in every sense of the
expression, an injured witness. The nature of the injuries which were
sustained by the prosecutrix would leave no manner of doubt that she
3 (2004) 1 SCC 421
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was subjected to a serious sexual assault. In recapitulating the
events which took place, there may be minor contradictions or
omissions, but these in the present case, are not sufficient to
disbelieve the over all veracity of the version of the incident which she
portrays and of her identification of the accused. In State of Punjab
vs. Ramdev Singh (supra), the Supreme Court held thus:
“If the prosecution has succeeded in making out a
convincing case for recording a finding as to the accusedbeing guilty, the court should not lean in favour of acquittal
by giving weight to irrelevant or insignificant circumstancesor by resorting to technicalities or by assuming doubts and
giving benefit thereof where none reasonably exists. A
doubt, as understood in criminal jurisprudence, has to be a
reasonable doubt and not an excuse for a finding in favourof acquittal. An unmerited acquittal encourages wolves in
the society being on the prowl for easy prey, more so whenthe victims of crime are helpless females or minor children.
The courts have to display a greater sense of responsibility
and to be more sensitive while dealing with charges ofsexual assault on women, particularly of tender age and
children.”
Counsel appearing on behalf of the Appellants has sought to urge that
the conduct of the prosecutrix in accompanying accused Umesh for
the wedding in the family of PW 7 would demonstrate that she had
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willingly proceeded with the accused. Even if as the evidence
suggested, the prosecutrix had willingly travelled with the accused to
the wedding and thereafter to the bungalow at Lonavala, it would be
preposterous to presume that a woman in her position would consent
to a sexual assault to which she was inflicted.
13. Counsel appearing on behalf of the Appellants has
submitted that the prosecution has failed to examine the other girl
who had accompanied the group to Lonavala. This, in our view, is not
a circumstance, which casts doubt either on the truthfulness of PW 6
or of the case of the prosecution. P.W. 13, who was the Investigating
Officer, deposed that he has made an enquiry and a search for the
other girl who was with the prosecutrix at the time of incident and has
mentioned the fact in his case diary, but she could not be traced and
she was a prostitute. The Investigating Officer denied the suggestion
that both the prosecutrix and that girl were prostitutes. The evidence
of the prosecutrix, PW 6, is trustworthy and inspires confidence. It
would be impermissible both in law and on first principles of
appreciation of evidence to disregard her evidence merely because
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the prosecution has not examined the other girl who had
accompanied the group. Similarly, the failure to examine the doctor
who had initially imparted medical treatment to the prosecutrix is not a
circumstance which would dilute the case of the prosecution. The
evidence of PW 6 is corroborated by PW 7 Snehal who deposed that
on 5th May 2001, the prosecutrix had come together with all the three
accused Appellants and the other accused to her home at Khopoli in
connection with the marriage of her brother which was to take place.
PW 7 deposed that after dinner, they had left stating that they would
come back on the next day for the marriage. However, on the next
day, the others attended the marriage but not the prosecutrix.
14. The report of the Regional Forensic Science Laboratory
(Exh.88) was that the blood group of the prosecutrix was “B”. Two
bedsheets recovered from the room where the prosecutrix had been
assaulted, had traces of semen of blood group “A” and “B” and ABO
antigens and AO antigens. The blood group of accused Appellant
Amit is “A”. The Learned Trial Judge has in the circumstances, relied
upon this piece of corroborative evidence.
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15. The accused Appellant Sachin Rao set up a plea of alibi.
DW 3 Datta deposed that on 4th May 2001 accused Sachin was with
him and had proceeded together with him and his wife to Pimpalwadi
to attend the marriage of his relative. The marriage was to be
solemnized on 5th May 2001. Certain photographs of the marriage
were sought to be relied upon and the witness deposed that he had
returned together with accused Sachin on 6th May 2001 at 9 a.m. In
the course of the cross-examination, the witness admitted that the
photographs did not show the date on they were taken nor was any
date mentioned on the negatives. The witness admitted that he had
not disclosed to the Police until the date of the deposition that the
accused was with him on 4th and 5th May 2001. Finally, the witness
also admitted that the photograph was not a photograph of the
marriage ceremony itself. In these circumstances, the plea of alibi
was completely untrustworthy and could not be believed.
16. For all these reasons, we are of the view that the
prosecution has established its case beyond reasonable doubt. The
conviction under Section 376(2)(g) and Section 377 of the Penal
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Code does not suffer from any infirmity. Considering the heinous
nature of the crime and the circumstances in which the prosecutrix
was subjected to a sexual assault by all the three accused Appellants
between 11.30 p.m. on the night of 5th May 2001 and 4.30 a.m. on 6th
May 2001 and was subjected to rape and anal intercourse, we are
affirmatively of the view that the sentence which was imposed upon
the Appellants meets the ends of justice and does not call for any
interference. The appeals shall accordingly stand dismissed.
CHIEF JUSTICE
Dr.D.Y. CHANDRACHUD, J.
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