{"id":121259,"date":"2008-11-26T00:00:00","date_gmt":"2008-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/high-court-bench-at-aurangabad-vs-manik-mohan-gaikwad-on-26-november-2008"},"modified":"2016-04-19T00:38:03","modified_gmt":"2016-04-18T19:08:03","slug":"high-court-bench-at-aurangabad-vs-manik-mohan-gaikwad-on-26-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/high-court-bench-at-aurangabad-vs-manik-mohan-gaikwad-on-26-november-2008","title":{"rendered":"High Court Bench At Aurangabad vs Manik Mohan Gaikwad on 26 November, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
High Court Bench At Aurangabad vs Manik Mohan Gaikwad on 26 November, 2008<\/div>\n
Bench: N.V. Dabholkar, S. S. Shinde<\/div>\n
                            (-1-)\n\n\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                        BENCH AT AURANGABAD\n\n                  CRIMINAL APPEAL NO. 219 OF 2006\n\n\n\n\n                                                                 \n    The State of Maharashtra\n    (Through Public Prosecutor\n\n\n\n\n                                         \n    High Court Bench at Aurangabad)            ...Appellant\n\n\n             Versus\n\n\n\n\n                                        \n    1.   Manik Mohan Gaikwad,\n         Age 25 years,\n         R\/o. Dadegraion,\n         Tq. Ashti District Beed\n\n    2.   Bhausaheb Mohan Mali,\n\n\n\n\n                                  \n         Age 30 years, R\/o. Dhamangaon\n         Tq.Ashti, District Beed                   ...Respondents\n                       ig     ALONGWITH\n                   CRIMINAL APPEAL NO. 44 OF 2007\n                     \n    1.   Manik Mohan Gaikwad,\n         Age 25 years,\n         R\/o. Dadegraion,\n         Tq. Ashti District Beed\n      \n\n\n    2.   Bhausaheb Mohan Mali,\n         Age 30 years, R\/o. Dhamangaon\n   \n\n\n\n         Tq.Ashti, District Beed                   ...Appellants\n\n\n              Versus\n\n\n\n\n\n    The State of Maharashtra\n    (Through Public Prosecutor\n    High Court Bench at Aurangabad)                ...Respondents\n\n\n                              .....\n\n\n\n\n\n    A.P.P. Shri N.N.Jadhav for the appellant in Criminal\n    appeal No. 219 of 2006 and for respondents in criminal\n    appeal No.44 of 2007\n\n    Advocate Shri. S.D. Hiwrekar for accused in both the\n    appeals.\n\n\n\n\n                                         ::: Downloaded on - 09\/06\/2013 14:05:49 :::\n                                    (-2-)\n\n\n\n\n                                         .....\n\n                                          CORAM: N.V. DABHOLKAR AND\n                                                 S. S. SHINDE, JJ.\n<\/pre>\n
                      DATED OF RESERVING
\n                      THE JUDGMENT                 : 22ND SEPTEMBER, 2008.<\/p>\n
\n\n\n\n\n                                                         \n                      DATED OF PRONOUNCING\n                      THE JUDGMENT        :          26TH NOVEMBER 2008.\n\n\n\n\n                                                        \n    JUDGMENT (PER SHINDE, J.):-\n\n\n\n    1.      Both these appeals challenge the judgment and                            order\n\n\n\n\n                                         \n    dated     3.12.2005      passed      by      IIIrd      Ad     Hoc       Additional\n\n    Sessions\n\n    2004,     thereby\n                         \n<\/pre>\n
                  Judge, Ahmednagar in Sessions Case No.<\/p>\n
                            convicting        the accused persons
\n                                                                                 202<\/span><\/p>\n
                                                                               for
\n                                                                                          of<\/p>\n
                                                                                        the<\/p>\n
    offences      punishable under Sections 376(g) and 363,                           366,<\/p>\n
    451, 323 and 506 r.w.          34 of I.P.C.\n<\/p>\n
    .     Criminal      appeal No.       219 of 2006 is by the State                      of<\/p>\n
    Maharashtra       for     enhancement       of sentence            and     criminal<\/p>\n
    appeal      No.     44 of 2007 is filed by accused                    challenging<\/p>\n
    the     conviction      and sentence as imposed by the                     Sessions<\/p>\n
    Court, Ahmednagar.\n<\/p>\n
    2.    The prosecution case, in nutshell, is as under:-\n<\/p>\n
    .     The    prosecutrix      is a minor girl residing                    with      her<\/p>\n
    father      P.W.6 Jalindar Narayan Shirsath, mother Sumanbai,<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                          (-3-)<\/p>\n
    two     sisters        and     two     brothers.       On    22.8.2004,             after<\/p>\n
    dinner, the kids including the prosecutrix went to sleep.\n<\/p>\n
    P.W.6     Jalindar           and     his     wife    were    listening           Kirtan<\/p>\n
    (religious           discourse)       by     sitting in the          courtyard          of<\/p>\n
    their     house.           The Kirtan was going on in                the      village.\n<\/p>\n
    The     door     of       the house was closed from inside,                    by     the<\/p>\n
    kids.      It        is    the     case of     the    prosecution           that      the<\/p>\n
    prosecutrix,           who happens to be a minor girl, heard                        that<\/p>\n
    somebody        was       pushing the door.          There was attempt              from<\/p>\n
    outside,        to open the door forcibly.                The prosecutrix did<\/p>\n
    not     open the door.             The accused persons forcibly                  dashed<\/p>\n
    and opened the door.\n<\/p>\n
                               ig      Two persons entered the house.                     One\n\n    was     wearing half white shirt and white pant and                            another\n                             \n    persons        was     wearing khaki pant and black                  shirt.         Both\n\n    were     having        black       complexion.       It is the case            of     the\n\n    prosecution           that the prosecutrix saw both the persons in\n      \n\n\n    the     light        of bulb.        One of the accused broke the                   bulb.\n   \n\n\n\n    The     person wearing white shirt and pant caught hold                               the\n\n    hands     of     the prosecutrix and another person caught                            her\n\n\n\n\n\n    legs     and     kidnapped           her   by closing       her      mouth.          They\n\n    slapped        her     and made her keep quiet.              They carried             her\n\n    towards        the     hilly area.         The accused persons              tore      her\n\n    midi     skirt and blouse.              Further they removed her nicker.\n\n\n\n\n\n    They     pulled        her down to earth.            Thereafter         the      person\n\n    wearing        white dress raped her first.                 The person wearing\n\n    black     shirt raped her thereafter.                 It is the case of the\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 14:05:49 :::<\/span>\n                                         (-4-)\n\n\n\n    prosecutrix          that since the accused persons were seen                       by\n\n    the     prosecutrix          in    the light of bulb, she is             able       to\n\n    identify them.\n\n\n\n\n                                                                                \n                                                       \n    .      It     is    further case of the prosecution               that       before\n\n    opening       door, these two persons assaulted P.W.6 Jalindar\n\n    when     he       was sitting with his wife in the courtyard                      for\n\n\n\n\n                                                      \n    listing Kirtan.            His wife ran towards the village.                   Those\n\n<\/pre>\n
    rapists assaulted P.W.6 Jalindar by iron pipe and another<\/p>\n
    pelted       bricks towards him.            He also saw both the rapists<\/p>\n
    in the light of bulb.\n<\/p>\n
    .      It     is further case of the prosecution that                    whatever<\/p>\n
    happened          inside     the room was informed by            the     children<\/p>\n
    that     the thieves kidnapped the prosecutrix and they have<\/p>\n
    taken       her     away.         Therefore, P.W.6 Jalindar            and     other<\/p>\n
    villagers          started searching prosecutrix with the help of<\/p>\n
    torch       and in the light of head lamp of motorcycle.                          The<\/p>\n
    prosecutrix          was     found in naked condition in hilly                  area<\/p>\n
    having       been     raped       by both the accused        persons.           They<\/p>\n
    brought       the prosecutrix to the house of P.W.6                     Jalindar.<\/p>\n
\n\n    The     prosecutrix          was taken to the police station,                  where\n\n    complaint Exh.             42 was lodged.\n\n\n\n\n\n<\/pre>\n
    3.     The prosecutrix was referred for medical examination.\n<\/p>\n
    P.W.8       Dr.     Manisha Narayan Hange carried out her medical<\/p>\n
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\n                                      (-5-)<\/p>\n
    examination.         Similarly,      to    determine the age              of     the<\/p>\n
    prosecutrix       she was also referred to P.W.12 Dr.                     Ambadas<\/p>\n
    Hari     Sase,     who    was then working        as    Radiologist,             who<\/p>\n
    opined     that the age of prosecutrix was in between 14                           to<\/p>\n
    16 years.        P.W.11 Pandharinath B.         Kedare carried out the<\/p>\n
    investigation in the matter.<\/p>\n
\n\n\n\n\n                                                     \n    .      Accused     No.1 Manik Mohan Gaikwad was               arrested          soon\n\n    after     the incident.         His identification parade was                  held\n\n    with     the     permission       of the Court on 24.9.2004               at     the\n\n\n\n\n                                            \n    hands     of     P.W.9    Rajendra Wagh.        P.W.5     prosecutrix            and\n\n    P.W.6     Jalindar\n                            \n                             in     independent   identification              parades\n\n    identified       him.         He was sent for     medical        examination.\n                           \n    P.W.10 Dr.        Suchitra Khedkar examined him.\n\n\n\n    .      During     the    course     of    investigation         accused         No.2\n      \n\n\n    Bhausaheb        Mohan Mali was arrested.          He was also promptly\n   \n\n\n\n    sent     for medical examination and his medical examination\n\n<\/pre>\n
    was     also done by P.W.8 Dr.            Manisha on 22.3.2005.                After<\/p>\n
    arrest     of accused No.2 with the permission of the court,<\/p>\n
    test     identification         parade was held by          P.W.9       Rajendra<\/p>\n
    Wagh     on 17.4.2005.         In that parade P.W.5 prosecutrix and<\/p>\n
    P.W.6      Jalindar       in      separate    identification              parades<\/p>\n
    identified accused No.2 Bhausaheb.\n<\/p>\n
    .     During investigation, spot panchanama was drawn in the<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                         (-6-)<\/p>\n
    presence     of        P.W.1    Dagadu       Ghuge     and       another        panch.\n<\/p>\n
    Similarly,        clothes      of the accused persons                were       seized<\/p>\n
    under panchanama at Exh.31 in presence of P.W.2 Bhausaheb<\/p>\n
    Shirsath     and other panchas.             The clothes of accused No.2<\/p>\n
    Bhausaheb        were seized from hut of his father in presence<\/p>\n
    of P.W.3 Sambhaji Warkad.\n<\/p>\n
    .      The samples of blood stains and clothes were sent for<\/p>\n
    Chemical Analyser’s report with P.W.14 Jabbar Rahim Khan.<\/p>\n
\n\n    C.A.      reports are at Exh.82 and 83.                  For the purpose               of\n\n\n\n\n                                            \n    age    determination,          school       leaving certificate               of     the\n\n    prosecutrix       was\n                             igalso      collected and         for      that      purpose\n\n    evidence         of      P.W.16      Arun     Bhagwat        was     taken         into\n                           \n    consideration.\n\n\n\n    .      On completion of investigation charge sheet was filed\n      \n\n\n    before     the        court    of    J.M.F.C.        Pathardi.           Since       the\n   \n\n\n\n<\/pre>\n
    offence was exclusively triable by the Court of Sessions,<\/p>\n
    learned J.M.F.C.          committed the case under Section 209 of<\/p>\n
    Cr.P.C.      to        the Court of Sessions at              Ahmednagar.             The<\/p>\n
    Sessions     Judge,        Ahmednagar framed the              charges         against<\/p>\n
    both the accused under Sections 376(g) and 363, 366, 451,<\/p>\n
    323, 506 r.w.          34 of I.P.C.         Both the accused pleaded not<\/p>\n
    guilty,     therefore,         they     were called upon to                face      the<\/p>\n
    trial.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span><\/p>\n
                                          (-7-)<\/p>\n
    4.      In     order        to prove the case,       the     prosecution            has<\/p>\n
    examined        in     all    15     witnesses.      The     first         important<\/p>\n
    witness is P.W.5 prosecutrix herself.                     Her evidence is at<\/p>\n
    Exh.41.         Her     name was not disclosed in the judgment                        in<\/p>\n
    the     light        of observations made by the Supreme Court                        in<\/p>\n
    the     case of State of Punjab Vs.               Ramdeo Singh,            reported<\/p>\n
    in      A.I.R.         2004     SC    1290.     P.W.6,       father        of       the<\/p>\n
    prosecutrix          Jalindar        Narayan   Shirsath,           who     is      also<\/p>\n
    injured        in     the    said episode at the           hands      of     accused<\/p>\n
    persons.        P.W.7 Ajinath Shirsath is examined vide Exh.44,<\/p>\n
    who     claims to be a villager and had participated in                             the<\/p>\n
    search operation for the prosecutrix.\n<\/p>\n
    .      Another bunch of witnesses is from medical profession<\/p>\n
    i.e.         P.W.8     Dr.      Manisha Hange at Exh.47,              P.W.10        Dr.<\/p>\n
    Suchitra        Bappasaheb         Khedkar     at Exh.67 and          P.W.12        Dr.<\/p>\n
    Ambadas Hari Sase is at Exh.88.\n<\/p>\n
    .      The     next bunch of witnesses are panch witness                          P.W.1<\/p>\n
    Dagadu        at Exh.28, P.W.21 Bhausaheb Shankar at Exh.20 and<\/p>\n
    P.W.3        Sambhaji       Maruti at Exh.32.       P.W.4        Jagdish          Mohan<\/p>\n
    Gade     at Exh.37 is Revenue Circle Inspector, who drew map<\/p>\n
    of     the     spot at Exh.39.          P.W.9 Rajendra Eknath              Wagh       at<\/p>\n
    Exh.57         is      Executive       Magistrate,          who       held         test<\/p>\n
    identification          parade of accused persons.                 P.W.      16 Arun<\/p>\n
    Rangnath        Bhagwat       happens to be the Head Master                  of     the<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                      (-8-)<\/p>\n
    school.        His        evidence    is recorded at           Exh.97.           P.W.13<\/p>\n
    Sadashiv       Gangadhar       Puri     at Exh.91, who happens                   to     be<\/p>\n
    P.S.O.        who     has recorded the complaint of                   prosecutrix.\n<\/p>\n
    P.W.14 Jabbar Rahimkhan Exh.92 is the carrier of Muddemal<\/p>\n
    to    the     Chemical Analyser.          P.W.11 Pandharinath                  Bapurao<\/p>\n
    Kedare      Exh.70        and P.W.15 Vikas Govindrao Tidake                      Exh.93<\/p>\n
    are     examined          as investigating Officers in                the      present<\/p>\n
    case.<\/p>\n
\n\n\n\n    5.      The    statements        of the accused are              recorded          under\n\n\n\n\n                                           \n    Section 313 of Cr.P.C.               Accused No.1 Manik Gaikwad in his\n\n    statement           has\n                              \n                                stated    that     he     demanded        arrears           of\n\n    Rs.7500\/-          to one Bajirao Dada Shete.               On refusal at              the\n                             \n    instance       of said Bajirao Dada Shete, he is implicated in\n\n    the false case.\n      \n\n\n    .     The accused represented their case through                            advocate.\n   \n\n\n\n    On    the     basis        of the pleadings and evidence                  on     record\n\n    brought       by     the     parties,    the        learned      Sessions          Judge\n\n\n\n\n\n    formulated         points     for his determination.                  The      learned\n\n<\/pre>\n
    Sessions Judge while dealing with the first point came to<\/p>\n
    the     conclusion that the prosecution proved that both the<\/p>\n
    accused       in     furtherance of their common                 intention            have<\/p>\n
    committed          gang rape on prosecutrix.              It is further               held<\/p>\n
    by    the     trial court that in furtherance of their                           common<\/p>\n
    intention          both the accused kidnapped the minor girl                          and<\/p>\n
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\n                                            (-9-)<\/p>\n
    thereby        committed offence under Section 363 r.w.                            34     of<\/p>\n
    I.P.C.         It is further held that the accused persons,                               in<\/p>\n
    furtherance           of       their    common intention, have                not       only<\/p>\n
    kidnapped           the        minor girl but she is also              subjected          to<\/p>\n
    forceful        sexual intercourse and thereby both the accused<\/p>\n
    have     further committed offence punishable under                              Section<\/p>\n
    366     r.w.        34 of I.P.C..C.            It was further held that both<\/p>\n
    the     accused           persons      in   furtherance        of      their        common<\/p>\n
    intention           committed house tress pass by entering in                           the<\/p>\n
    house        of prosecutrix and thereby committed offence under<\/p>\n
    Section        451 r.w.           34 of I.P.C.      It was further held that<\/p>\n
    in furtherance of their common intention both the accused<\/p>\n
    by     means        of     iron pipe and         brick    assaulted           Jalindar,<\/p>\n
    father        of prosecutrix, and therefore, they are also held<\/p>\n
    guilty        for the offence punishable under Section 323 r.w.\n<\/p>\n
    34 of I.P.C.\n<\/p>\n
    .      The Sessions Court finally convicted both the accused<\/p>\n
    under        Section 235 of Cr.P.C.              for the offence punishable<\/p>\n
    under        Sections 376 (g) of I.P.C.              and they are sentenced<\/p>\n
    to     suffer R.I.              for 10 years and to pay fine of Rs.500\/-\n<\/p>\n
    i\/d     of     payment of fine, they shall suffer further                               R.I.\n<\/p>\n
    for     one     year each.             Both accused are further               convicted<\/p>\n
    for     the offence punishable under Section 366 r.w.                                34 of<\/p>\n
    I.P.C.         and they are sentenced to suffer R.I.                          for       five<\/p>\n
    years        each        and     to pay fine of Rs.100\/- each                 i\/d       they<\/p>\n
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\n                                       (-10-)<\/p>\n
    shall     suffer R.I.          for 6 months each.      Both the          accused<\/p>\n
    are     further        convicted for the offence punishable                  under<\/p>\n
    section 451 r.w.           34 of I.P.C.      and they are sentenced to<\/p>\n
    suffer        R.I.     for six months and to pay fine of               Rs.100\/-\n<\/p>\n
    each     i\/d they shall suffer further R.I.                for six         months<\/p>\n
    each.         Accused are further convicted u\/section 323                     r.w.\n<\/p>\n
    34     of I.P.C.        and they are sentenced to suffer R.I.                   for<\/p>\n
    six     months.        Both the accused are further convicted                   for<\/p>\n
    the     offence        punishable      under Section 506 r.w.              34     of<\/p>\n
    I.P.C.         and     they are sentenced to suffer R.I.               for      six<\/p>\n
    months        each.      All the substantive sentences are to                   run<\/p>\n
    concurrently.\n<\/p>\n
                             Accused No.1 Manik Mohan is entitled                   for<\/p>\n
    set     off     under     Section 428 of Cr.P.C.           in     respect         of<\/p>\n
    substantive           sentence    for undergone period of jail                i.e.<\/p>\n
    from     23.8.2004        to 3.12.2005.      It was    further         directed<\/p>\n
    that accused No.2 Bhausaheb Mali is also entitled for set<\/p>\n
    off     under        section     428   of   Cr.P.C.      in     respect           of<\/p>\n
    substantive           sentence    for undergone period in jail                i.e.<\/p>\n
    from     22.3.2005        to 3.12.2005.      If the amount of fine                is<\/p>\n
    recovered        from     the accused, the amount of Rs.1000\/-                    is<\/p>\n
    ordered to be paid to P.W.5 prosecutrix under Section 357<\/p>\n
    of     Cr.P.C.        towards compensation after appeal period                    is<\/p>\n
    over.\n<\/p>\n
    6.      Being        aggrieved by inadequacy of        sentence          awarded<\/p>\n
    vide     impugned judgment and order passed by the                     Sessions<\/p>\n
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\n                                          (-11-)<\/p>\n
    Court, the State Government preferred Criminal Appeal No.<\/p>\n
    219     of     2006        for enhancement of the             sentence         and      the<\/p>\n
    original           accused    filed Criminal Appeal No.                   44 of        2007<\/p>\n
    for     setting        aside the finding of guilty and                      convicting<\/p>\n
    them.\n<\/p>\n
    7.      Learned           A.P.P.     Shri.     N.N.     Jadhav, appearing               for<\/p>\n
    the     State        has submitted that the accused                    persons         have<\/p>\n
    committed           heinous crime.         They are charged under Section<\/p>\n
    376(g)        of     I.P.C.         They     have     committed        rape      on     the<\/p>\n
    prosecutrix,           who    is     minor.     The manner           in     which       the<\/p>\n
    entire        incident<\/p>\n
                                 took place is very serious.                    It is       not<\/p>\n
    only     that        the accused persons committed gang                       rape      but<\/p>\n
    they     went        to     the house of the prosecutrix                  during        the<\/p>\n
    night        time.         They     opened      the     door     forcibly.             They<\/p>\n
    kidnapped           the prosecutrix, who is minor girl.                       They took<\/p>\n
    her     away to nearby hilly area and committed rape on her.\n<\/p>\n
    The     prosecutrix had occasion to clearly observe and                                 see<\/p>\n
    the     accused        persons       in the light of           bulb,        which       was<\/p>\n
    subsequently           broken by the accused persons.                     In the said<\/p>\n
    incident           initially,       the accused persons              assaulted          the<\/p>\n
    father of the prosecutrix, thereafter forcibly opened the<\/p>\n
    door,        assaulted       the prosecutrix, kidnapped her                      and      to<\/p>\n
    cause        disappearance of the evidence they broke the bulb.\n<\/p>\n
    The panchnama shows that inside house electric holder and<\/p>\n
    bulb     were        found        in broken condition.             They       took      the<\/p>\n
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\n                                        (-12-)<\/p>\n
    prosecutrix            away from the house and committed gang rape.\n<\/p>\n
    All     these        events      are   of    very     serious        nature          and<\/p>\n
    therefore,          the sentence awarded by the Sessions Court be<\/p>\n
    enhanced         and      ultimately it was prayed that the                   maximum<\/p>\n
    sentence         should       be awarded to the accused persons.                       In<\/p>\n
    the     said        appeal,      various    grounds      are      taken       by     the<\/p>\n
    appellant.          In Ground No.3 it is specifically stated that<\/p>\n
    the prosecutrix was minor girl under the age of 16 years.\n<\/p>\n
    She     was forcibly taken without bothering for the protest<\/p>\n
    of     her     father       and this itself shows that               the      accused<\/p>\n
    persons        were not bothered or scared about the age of the<\/p>\n
    prosecutrix.\n<\/p>\n
                              It is further stated that Hon’ble                   Supreme<\/p>\n
    Court        in the case of Dhananjay Vs.              State of West Bengal<\/p>\n
    (1994)       2      SCC    220   observed     that       the      imposition           of<\/p>\n
    appropriate          punishment is the manner in which the courts<\/p>\n
    respond        to    the    Society’s cry for justice                against         the<\/p>\n
    criminals.           It    is further argued by the learned                     A.P.P.\n<\/p>\n
    that     in the case of Rajiv Vs.             State of Rajasthan (1996)<\/p>\n
    2     SCC 175, it is observed that the court will be failing<\/p>\n
    in     its duty if appropriate punishment is not awarded for<\/p>\n
    a     crime,     which has been committed not only against                           the<\/p>\n
    individual          victims but also against the society to which<\/p>\n
    the     criminal and victims belong.                Finally, it was argued<\/p>\n
    that     taking entire evidence into account and the heinous<\/p>\n
    crime     committed         by    the accused       persons,         the      maximum<\/p>\n
    sentence should be awarded to the accused persons.\n<\/p>\n
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                                             (-13-)<\/p>\n
    8.      Learned           counsel        appearing     for     the      accused         has<\/p>\n
    submitted           that     the        concocted and false case             is     filed<\/p>\n
    against        the        accused persons.         It is     further         submitted<\/p>\n
    that     the presence of P.W.6 in the courtyard of the house<\/p>\n
    as     stated        by the prosecution is not possible.                      Even       if<\/p>\n
    the     prosecution story is believed, there was no light to<\/p>\n
    see     the     accused persons.                It is further submitted                that<\/p>\n
    the     story        of     prosecution is twofold.               It     is       further<\/p>\n
    submitted that if version of prosecutrix is compared with<\/p>\n
    the     version of Jalindar, father of prosecutrix, there is<\/p>\n
    variance.\n<\/p>\n
                        The version of Jalindar is not corroborated by<\/p>\n
    spot     panchanama.               It     is further    submitted           that       test<\/p>\n
    identification              parade       carried out by P.W.9 was               not      in<\/p>\n
    accordance           with       the     guidelines laid down           in     Criminal<\/p>\n
    Manual.\n<\/p>\n
    .      It     was     further submitted that                there      are    material<\/p>\n
    contradictions and omissions in the deposition especially<\/p>\n
    of     P.W.7        and     8    in      respect of    time     of      the       alleged<\/p>\n
    incident.            It was further submitted that as per                       medical<\/p>\n
    evidence        the        age     of     the    injuries     sustained           by    the<\/p>\n
    prosecutrix,           her father and appellant No.1 are different<\/p>\n
    and     therefore,           no inference can be drawn in respect                        of<\/p>\n
    assault        on     Jalindar and the presence of the accused                           at<\/p>\n
    the     scene of offence.                It was further submitted that                   in<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                          (-14-)<\/p>\n
    view     of     the        specific admission of P.W.9                   and     11        that<\/p>\n
    Tahsil Office, police station and prison are adjacent and<\/p>\n
    in the same premises, the learned trial court has wrongly<\/p>\n
    held     that the identity of the appellant is proved beyond<\/p>\n
    reasonable           doubt without any further corroboration.                               It<\/p>\n
    was     further argued that no proper identification                                 parade<\/p>\n
    is     held     by P.W.9 and Tahsildar.                   It was submitted                 that<\/p>\n
    the     trial        court     failed     to       consider        that        there        are<\/p>\n
    material        contradictions and omissions in the                           deposition<\/p>\n
    of     P.W.11,        Investigation          Officer and           P.W.13,         as      the<\/p>\n
    Investigating           Officer       says        that     the     complainant             had<\/p>\n
    narrated story to him and on his dictation it was reduced<\/p>\n
    in      writing        by     P.W.14.          Whereas        P.W.13        says           that<\/p>\n
    complainant          had     directly        narrated the            story       to        him.\n<\/p>\n
    Accordingly, he had reduced it in writing.                               It is further<\/p>\n
    submitted        that        there    are material            contradictions               and<\/p>\n
    omissions        in respect of the injuries sustained by P.W.6,<\/p>\n
    and     the story of search of accused in the light of motor<\/p>\n
    cycle, is not corroborated by any of other witnesses.                                       It<\/p>\n
    was     further submitted that all circumstances against the<\/p>\n
    accused        are     not put to them in their                  statements             under<\/p>\n
    Section        313     of     Cr.P.C.        It     is     submitted           that        mere<\/p>\n
    production           of document from school is not sufficient                              to<\/p>\n
    prove     the        age     of victim.        It was       submitted           that        the<\/p>\n
    entire        prosecution       story        is     concocted,           there        is     no<\/p>\n
    concrete        evidence       against        the        accused       persons.            The<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                          (-15-)<\/p>\n
    identification              parade as carried out is in violation                         of<\/p>\n
    the      provisions           laid     down    in   criminal            manual          and<\/p>\n
    therefore,         the judgment and order passed by the Sessions<\/p>\n
    Court is liable to be quashed and set aside.\n<\/p>\n
    9.      We    have      heard learned counsel               appearing          for      the<\/p>\n
    respective         parties       at     length.      We       have      perused         the<\/p>\n
    judgment        and     order        passed by the Sessions               Judge.          We<\/p>\n
    would     like        to deal with the first point which is                           about<\/p>\n
    the     age     of     the     prosecutrix at        the       time       of      alleged<\/p>\n
    offence.           According to the learned counsel appearing for<\/p>\n
    the<\/p>\n
            accused the prosecution has failed to prove that the<\/p>\n
    prosecutrix was minor at the relevant time.\n<\/p>\n
    .     To ascertain the age of prosecutrix, the                            prosecutrix<\/p>\n
    was     examined        by     P.W.12     Ambadas Hari           Sase       and       after<\/p>\n
    ossification           test     he    opined      that        the      age     of       the<\/p>\n
    prosecutrix           was     in between 6 to 14 years.                   Apart        from<\/p>\n
    this,     the        prosecution did produce the school record                            of<\/p>\n
    the     prosecutrix vide Exh.100.               Copy of birth extract                     at<\/p>\n
    Exh.98.         Copy of school register which is duly proved by<\/p>\n
    producing          original register at the hands of P.W.16                           Arun<\/p>\n
    Rangnath Bhagwat, Head Master of the school.                              The date of<\/p>\n
    birth     of prosecutrix is dated 1.11.1992 and the date                                  of<\/p>\n
    offence       is      22.8.2004.        So on 22.8.2004 the age                  of     the<\/p>\n
    prosecutrix was of 11 years and nine months and odd days.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span><\/p>\n
                                          (-16-)<\/p>\n
    Learned counsel appearing for the accused placed reliance<\/p>\n
    on     the judgment of this Court in the case of Amit @ Bapu<\/p>\n
    Nanasaheb       Handawalkar Vs.            State of Maharashtra reported<\/p>\n
    in     2006    All M.R.           (Cri.) 3057 and contended that                  entry<\/p>\n
    regarding          age of the person in school register is not of<\/p>\n
    much     evidentiary value to prove the age of the person in<\/p>\n
    absence of material on which the age was recorded.                                We do<\/p>\n
    not     agree with the submission of the learned counsel for<\/p>\n
    the     accused\/appellants.            The prosecution has brought                     on<\/p>\n
    record     the evidence of P.W.12 and P.W.16 and                         therefore,<\/p>\n
    the     prosecution has convincingly proved that at the time<\/p>\n
    of     incident       the
\n                              ig     prosecutrix was minor.             The     evidence<\/p>\n
    produced       by     the        prosecution is admissible.                There       is<\/p>\n
    nothing       in     the     cross examination of the                witnesses         to<\/p>\n
    disbelieve the evidence about the age of the prosecutrix.\n<\/p>\n
    10.      The       prosecutrix        is   examined        as     P.W.5       by     the<\/p>\n
    prosecution.               Her    evidence    is   at      Exh.41.          In       her<\/p>\n
    examination         in      chief, she deposed that at the                  time       of<\/p>\n
    incident she was studying in 7th standard.                          Incident took<\/p>\n
    place on 22.8.2004 i.e.               Sunday which was holiday for the<\/p>\n
    school.        At     about 8.30 p.m.         she took dinner              alongwith<\/p>\n
    other     sisters        and      brothers.   She went          to     sleep,        her<\/p>\n
    parents       were listening Kirtan.           The parents were sitting<\/p>\n
    outside       the house.          She further states that door of                    the<\/p>\n
    house     was closed from inside.             She further deposed                  that<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                          (-17-)<\/p>\n
    somebody        knocked the door from outside.                   She woke up and<\/p>\n
    heard     that        somebody       was    asking       to     open      the        door.\n<\/p>\n
    However,        she did not open the door.                The door was opened<\/p>\n
    by     giving dash to the door.               Two persons entered in                  the<\/p>\n
    house.         She specifically states that she saw them in the<\/p>\n
    light     of     bulb.         She     further states that            one      of     the<\/p>\n
    accused        broke        the bulb.      One person was          wearing          white<\/p>\n
    half     shirt and white pant and another person was wearing<\/p>\n
    Khaki     pant        and     black     shirt.       She       repeated         in     her<\/p>\n
    deposition        that        she    saw both of them in the                light       of<\/p>\n
    electric        bulb.         She     further deposed         that      the      person<\/p>\n
    wearing        white
\n                             ig pant caught her hands and person                   wearing<\/p>\n
    black shirt caught her legs and lifted her.                           They brought<\/p>\n
    her     out     of house.           They pulled her towards small                   hill,<\/p>\n
    She     tried to cry for help.                Accused persons slapped her.\n<\/p>\n
    She further deposed that accused persons tore her clothes<\/p>\n
    i.e.      midi        skirt     and blouse.       They        also     removed        her<\/p>\n
    nicker.         They        pulled     her down to       earth.         The      person<\/p>\n
    wearing        white        dress    first raped her.            Thereafter           the<\/p>\n
    person        wearing       black     shirt    raped      her.        She      further<\/p>\n
    deposed        that     both        the accused committed            rape      on     her<\/p>\n
    twice.         She     tried to run away from the clutches of                         the<\/p>\n
    accused.         She        scratched by her nails on the                 person        of<\/p>\n
    both the rapists.             She further deposed that she sustained<\/p>\n
    injuries        on her face and chest.            She further states that<\/p>\n
    her bangles were broken in the incident.\n<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span><\/p>\n
                                         (-18-)<\/p>\n
    .     She further deposed that her father and villagers came<\/p>\n
    towards them.           Both the rapists ran away after seeing the<\/p>\n
    people.         She narrated the incident to her parents.                          Then<\/p>\n
    police        jeep came.          Then they went to the police               station<\/p>\n
    and     complaint           was    immediately     lodged      in     the      police<\/p>\n
    station.            Signature was put on the complaint which is at<\/p>\n
    Exh.42.         She     further states that she was                 referred        for<\/p>\n
    medical        examination         at   Pathardi Rural         Hospital.            She<\/p>\n
    further        deposed that in first identification parade, she<\/p>\n
    identified one of the accused.                   In another identification<\/p>\n
    parade<\/p>\n
                  she identified another accused.                She deposed that<\/p>\n
    both     the        accused       forcibly took her to hill             and       while<\/p>\n
    resisting the accused, she sustained nail injuries on her<\/p>\n
    face.         She     was     compelled to fell down on              the      ground.\n<\/p>\n
    Accused        persons tore her clothes, removed her nicker and<\/p>\n
    committed           rape.     She further deposed that she is telling<\/p>\n
    true version.\n<\/p>\n
    .      In     her cross examination, she deposed that                       she     was<\/p>\n
    raped by the accused persons twice.                   She cannot tell that<\/p>\n
    why     the     police        did not mention the said              fact      in    the<\/p>\n
    complaint.           She denied the suggestion that her father was<\/p>\n
    with     her        when she went to identification                 parade.         She<\/p>\n
    denied        all     the suggestions put by the defence                   counsel.\n<\/p>\n
    Her     evidence in examination in chief is not shattered in<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                             (-19-)<\/p>\n
    any     manner        in     the        cross examination.           In     the      cross<\/p>\n
    examination           suggestion          was    given to her          that      she      is<\/p>\n
    giving        false        evidence       that     accused     broke        the      bulb.\n<\/p>\n
    However,        she reiterated that she saw the accused persons<\/p>\n
    in the light of bulb and thereafter accused persons broke<\/p>\n
    the     bulb.        About the description of the accused persons,<\/p>\n
    her      testimony               remained       intact     even        after         cross<\/p>\n
    examination.              Nothing could be brought out by the defence<\/p>\n
    counsel in the cross examination to make the testimony of<\/p>\n
    P.W.5        prosecutrix          unworthy.       F.I.R.      was lodged by             the<\/p>\n
    prosecutrix immediately.\n<\/p>\n
    11.     Deposition of P.W.6 Jalindar Shirsath, father of the<\/p>\n
    prosecutrix           before the court is at Exh.43.                    He stated in<\/p>\n
    his     deposition that he himself, wife Sumanbai, daughters<\/p>\n
    Deepali,        Laxmi,           Radha and Sons Sarangdhar and                 Haribhau<\/p>\n
    were         residing            in      the     field   house         together           at<\/p>\n
    Shirsathwadi.               On     22.8.2004      he went      for        labour       work<\/p>\n
    throughout           the day and came back at evening.                      They      took<\/p>\n
    their        dinner        in the house.          Then daughter         Deepali         and<\/p>\n
    other        kids     went        for    sleeping inside         the       house.         He<\/p>\n
    alongwith           his     wife were sitting in Padavi, outside                        the<\/p>\n
    house, for listening Kirtan.                     He deposed that dog barked,<\/p>\n
    therefore,           he     stood up.          Some sound came         from       western<\/p>\n
    side.         One person wearing black checks shirt having pipe<\/p>\n
    in     his     hand, came to him.                He saw them in the light                 of<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                       (-20-)<\/p>\n
    bulb     of his house, which was outside the house,                         locally<\/p>\n
    called     as Padavi.        The thief who was having check                     shirt<\/p>\n
    abused     him     in     the     words    “Bhainchod       Bajula        Ho”        and<\/p>\n
    assaulted        him with pipe on his left hand.                  Another thief<\/p>\n
    pelted bricks towards him on his back.                    The person having<\/p>\n
    checks     shirt broke the bulb.            Though he cried for                 help,<\/p>\n
    nobody     came     from     village as Kirtan was               going        on     and<\/p>\n
    nobody could listen his cry.               His wife went to village to<\/p>\n
    call      villagers        for    help.       His    sons        Haribhau            and<\/p>\n
    Sarangdhar        came     running towards him.           They       stated         him<\/p>\n
    that     their     sister, daughter of P.W.6 is taken                     away       by<\/p>\n
    thieves.\n<\/p>\n
    .      Villagers        came to his house alongwith his wife.                        He<\/p>\n
    alongwith        other villagers started searching daughter                          in<\/p>\n
    the light of motor cycle.             He saw his daughter near hilly<\/p>\n
    area.      He     further        deposed that daughter was               in        naked<\/p>\n
    condition.         Both     the thieves ran away by               seeing         them.\n<\/p>\n
    Daughter        narrated    the     incident    to        him.       He       further<\/p>\n
    deposed        that on the spot, clothes of the daughter,                          hair<\/p>\n
    bangle     pieces,        blood stains were found.              Then      daughter<\/p>\n
    was     brought     to house.       Then police came.             They went          to<\/p>\n
    police     station        and complaint was lodged.               Daughter          was<\/p>\n
    taken     to     hospital at Pathardi.         Spot was shown               to      the<\/p>\n
    police     on     the second day.          The police       seized        clothes,<\/p>\n
    hair     bangle     pieces from the spot.            He     further           deposed<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                             (-21-)<\/p>\n
    that     he can identify the accused persons.                          He identified<\/p>\n
    the accused persons before the Court.                         He further deposed<\/p>\n
    that     he     correctly              identified the     accused           persons       in<\/p>\n
    identification parades.\n<\/p>\n
    .      In his cross examination nothing substantial could be<\/p>\n
    brought        out        by     the defence counsel to            disbelieve           the<\/p>\n
    testimony           of        P.W.6 father and he asserted even                  in     the<\/p>\n
    cross        examination          that accused did commit rape                   on     his<\/p>\n
    daughter        and           those are the same persons to whom he                     has<\/p>\n
    identified.\n<\/p>\n
    12.     P.W.7 Ajinath Dnyaneshwar Shirsath, who deposed that<\/p>\n
    he     resides           in     the     nearby vicinity       of     the      house       of<\/p>\n
    Jalindar        P.W.6.            He     further deposed that           he     went       to<\/p>\n
    listen        the Kirtan.             Sumanbai, wife of P.W.6 came running<\/p>\n
    in     the     Kirtan crying for help.              She told           that      thieves<\/p>\n
    assaulted           them.         He further deposed that              he     alongwith<\/p>\n
    other        came        to Jalindar’s house.           Jalindar narrated               the<\/p>\n
    incident.            Then they started to search Deepali.                        Deepali<\/p>\n
    was found in the forest land on hill at a distance of 700<\/p>\n
    to     800     meters.           She was found in naked            condition.             He<\/p>\n
    narrated        other details also.              In his cross           examination,<\/p>\n
    nothing        substantial             could be brought on record                by     the<\/p>\n
    defence to disbelieve his version.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span><\/p>\n
                                        (-22-)<\/p>\n
    13.         P.W.8        is   Medical Officer.       Her deposition              is    at<\/p>\n
    Exh.47.        In her examination in chief, she deposed that on<\/p>\n
    23.8.2004           at     midnight she received a letter                 of     P.S.I.\n<\/p>\n
    Tidake,        who       personally      brought    the     said        letter        and<\/p>\n
    prosecutrix           Deepali     Jalindar      Shirsath.           She        admitted<\/p>\n
    endorsement           on the letter, which was shown to her during<\/p>\n
    chief        examination.          She further deposed that                the     said<\/p>\n
    letter        is     at Exh.48.       She further states that she                  also<\/p>\n
    received           another     letter    for    examination          of        Jalindar<\/p>\n
    Shirsath.            She      admitted the contents of the                letter       as<\/p>\n
    well as endorsement made by her, which is at Exh.49.\n<\/p>\n
    .      She further deposed that as per the police statement,<\/p>\n
    the        prosecutrix        was under age, therefore, her                 father’s<\/p>\n
    consent        was taken for medical examination.                    She       further<\/p>\n
    stated that probable age of the prosecution was around 13<\/p>\n
    years.         She        deposed that prosecutrix gave              the        history<\/p>\n
    that        there        was sexual assault on her by two persons                      on<\/p>\n
    22.8.2004           at     around 10.30 p.m.       In Medical           examination<\/p>\n
    she observed as follows:-\n<\/p>\n
           ”     Her     height was 147 cms.           Weight was 36 Kgs.                 She<\/p>\n
           was averagely built and averagely nourished.                            Her all<\/p>\n
           teeth        were      present.     Her axillary and          pubic        hairs<\/p>\n
           were         sparse.       Breast       development        was          present.<\/p><\/blockquote>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span><\/p>\n
                                       (-23-)<\/p>\n
     Genitals were well developed.                    She was well oriented,<\/p>\n
     conscious           and        afebrile.      her    blood        pressure         was<\/p>\n
     120\/70        mm        of hg.     pulse 86 per minute.               R\/R 18       per<\/p>\n
     minute.                 C.N.S.          examination           conscious,             no<\/p>\n
     neurological             deficit.          Pupils      bilaterally              equal<\/p>\n
     reacting           to     light     R.S.     examination;             clear,       air<\/p>\n
     entry      equal on both sides.                C.V.S.       Examination S-1,<\/p>\n
     S-2     normal,           her     abdomen, L-O, S-O K-O.                 There       is<\/p>\n
     tenderness              over     supra pubic region.            Her      gait      was<\/p>\n
     broad based, painful.                   Blood was trickling down up to<\/p>\n
     feet,      while          standing.         There    is     no     evidence          of<\/p>\n
     venereal<\/p>\n
                        disease noted.           Regarding her clothes;                 she<\/p>\n
     was     found naked at the place of incident as told                                 by<\/p>\n
     her     and        other        clothes were given to her                and     then<\/p>\n
     brought        to R.H.Pathardi.              Regarding history of bath;\n<\/p>\n
     she     had        taken bath in the morning on                   22nd      August,<\/p>\n
     2004.         Regarding           the    history of urine             and      motion<\/p>\n
     passed        after        this     incident.       No    urine        or      motion<\/p>\n
     passed.\n<\/p>\n
     .     P.W.8         Dr.         Manisha Hange       noted        the     following<\/p>\n
     injuries on the person of prosecutrix:-<\/p>\n
\n\n\n\n\n\n     1.    On      face:        Abrasion- multiple linear curved                      red\n\n           abrasion           on left cheek infra-orbital area, left\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 14:05:49 :::<\/span>\n                                  (-24-)\n\n\n\n          side      nose         measuring      1\/2      cm     x      1\/4        cms.\n\n          suggestive of nail marks etc.\n\n\n\n\n                                                                              \n     2.   Swelling:     Over forehead in centre, upper lip in\n\n\n\n\n                                                      \n          centre 1x1 cms.\n\n\n\n     3.   Contusion:           Red in colour, right               infra-orbital\n\n\n\n\n                                                     \n          area   1.5       x     1\/2    cms.     Another            contusion        on\n\n          lateral angle of right eye, 1x1 cms.\n\n\n\n\n                                       \n<\/pre>\n
     On   neck   examination she found abrasion on anterior<\/p>\n
          surface of neck, which is linear, curved and red<\/p>\n
          in colour of 6 cms x 1\/4 cms.\n<\/p>\n
     On breast examination:\n<\/p>\n
     Right breast,       multiple linear abrasions which                          were<\/p>\n
          red,   extending from areola to sternal area 5 in<\/p>\n
          number,      1\/2       cm,    apart     from        each       other,        2<\/p>\n
          abrasions on lateral side.              On left breast there<\/p>\n
          were   multiple         linear abrasions, red in                    colour<\/p>\n
          extending from areola to sternal area, 7 in Nos.\n<\/p>\n
     Abrasions      present       on (1) Right shoulder                  and      Right<\/p>\n
     Scapular    area        5    cms    x 2 cms,        (2)        right      forearm<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                   (-25-)<\/p>\n
     medially          which     was 3×2 cms.     (3) left forearm              with<\/p>\n
     left     elbow joint post medially, which was 2.5 x                           1.5<\/p>\n
     cms.        (4) multiple abrasions over back (5) there was<\/p>\n
     abrasion over right knee.              5 in number each measuring<\/p>\n
     1\/2     x    1\/2        cms.\/ (6) Abrasions on left knee,                 6     in<\/p>\n
     number       1.2        x 1\/4 cms.    There was abrasion            on        left<\/p>\n
     thigh       middle        1\/3rd area laterally 3 cms x              1\/2       cm.\n<\/p>\n
     There       was        abrasions on right buttock,           lower        outer<\/p>\n
     quadrant,          linear, red 4 in numbers, 4 cms x 1\/4                      cms<\/p>\n
     each.\n<\/p>\n
     On Genital examination she found following things:-\n<\/p>\n
     Monspulis              structure   normal.       External           urethral<\/p>\n
     meatus;           normal,     hymen   is teared off.             There        was<\/p>\n
     presence          of     second degree perennial tear              noted       on<\/p>\n
     left medio later all including posterior vaginal wall<\/p>\n
     upto     3 cms.          (b) perennial muscle (v) perennial skin<\/p>\n
     upto 3 cms.             Fresh bleeding present through wound.\n<\/p>\n
     Cervix:           No injury over curvi P\/V examination:                    done<\/p>\n
     under sedation.\n<\/p>\n
     There was tenderness over supra pubic area present:-\n<\/p>\n
     Sample sent for chemical analysis are:-\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span><\/p>\n
                                      (-26-)<\/p>\n<\/blockquote>\n
          1. blood in plan bulb and citrate bulb.\n<\/p><\/blockquote>\n
          2. vaginal swab.\n<\/p><\/blockquote>\n
          3.     vulvar swab<\/p>\n<\/blockquote>\n
          4. Pubic hair<\/p>\n<\/blockquote>\n
          5. Nail clippings.\n<\/p><\/blockquote>\n
    .      She     further       deposed       that    patient        was     admitted<\/p>\n
    overnight          at      residential       Hospital       Pathardi.              The<\/p>\n
    prosecutrix        perennial        tear was sutured under               sedation.\n<\/p>\n
    She    was     given       adequate       I.V.     fluids       and      necessary<\/p>\n
    antibiotic         course     and    she had been referred               to     Civil<\/p>\n
    Hospital,      Ahmednagar on 23.8.2004 for age determination.\n<\/p>\n
    She further deposed all injuries mentioned in the medical<\/p>\n
    certificate        are      caused within six hours.               She        further<\/p>\n
    deposed that the contents of medical certificate given by<\/p>\n
    her are true and correct.              The said certificate bears her<\/p>\n
    signature      which is at Exh.50.           She further deposed                 that<\/p>\n
    according      to        her examination and injuries noted by                     the<\/p>\n
    prosecutrix        on      the   person    of     prosecutrix,           there       is<\/p>\n
    evidence      of        recent   forceful sexual         intercourse.              She<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span>
\n                                           (-27-)<\/p>\n
    further      deposed        that police only asked to                     examine         the<\/p>\n
    patient      and     did        not     ask the      opinion         and       therefore,<\/p>\n
    through      oversight          she     did    not     mention           her     specific<\/p>\n
    opinion      which        she     has     given in         chief.          She       further<\/p>\n
    deposed      that     the        prosecutrix         was      referred          to     Civil<\/p>\n
    Hospital, Ahmednagar to civil surgeon and Radiologist for<\/p>\n
    determination         of age.          The Civil surgeon and radiologist<\/p>\n
    took       X-rays 3 in number and gave opinion that the age of<\/p>\n
    prosecutrix         Deepali was between 6 to 14 years.                           The said<\/p>\n
    X    ray     plates and opinion of radiologist was                            placed        on<\/p>\n
    record during her examination in chief.\n<\/p>\n
    .        She further deposed that on the same day she examined<\/p>\n
    Jalindar      P.W.6        at     about       1.00     a.m.          She       noted      the<\/p>\n
    following injuries on his person.\n<\/p>\n
        1.      Contusion       over left forearm, posterior laterally<\/p>\n
                upper 1\/2, 6 cms x 4 cms.\n<\/p>\n
        2.      Right     arm upper 1\/3rd laterally, contusion                              with<\/p>\n
                abrasion,2 cms x 2 cms.\n<\/p>\n
        3.      Abrasion       on     right scapular area linear                       oblique<\/p>\n
                and     red     in colour 7 cms x 1\/2 cms.                         There      was<\/p>\n
                abrasion on right infrascapular area.                             Linear and<\/p>\n
                red, it was 7 cms x 1\/2 cms.\n<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:05:49 :::<\/span><\/p>\n
                                        (-28-)<\/p>\n
        Above injuries         may be caused by hard and blunt object.\n<\/p>\n
                 The    above injuries were caused within 12                     hours.\n<\/p>\n
                 All    injuries were simple in nature.                 Accordingly<\/p>\n
                 she    issued       medical certificate.            The     contents<\/p>\n
                 therein       are    true   and    correct.         It     bear      her<\/p>\n
                 signature.          It also bear the thumb impression of<\/p>\n
                 P.W.6 Jalindar which is at Exh.53.\n<\/p>\n
    .      She    further deposed that on 22.3.2005                  she     received<\/p>\n
    police       yadi     with       police constable Gorde to             examine        a<\/p>\n
    patent viz.\n<\/p>\n
                         Bhausaheb Mohan Mali.        She examined the said<\/p>\n
    patient.           She found that his general condition was good.\n<\/p>\n
    His height was 5 ft, 8 inch, his weight was 55 Kgs R\/R 19<\/p>\n
    per    minutes,        pulse 78 per minute.         etc.         She     observed<\/p>\n
    that     his penis was normal.              Smegma absent.        In her cross<\/p>\n
    examination         nothing substantial was brought on record by<\/p>\n
    the    defence        to     disbelieve the evidence           of      P.W.8      Dr.<\/p>\n
    Manisha Hange.\n<\/p>\n
    14.    P.W.9 Rajendra Eknath Wagh, is Executive Magistrate,<\/p>\n
    Tahsildar          Pathardi.       He deposed that on 12.9.2004                 P.I.\n<\/p>\n
    Pathardi       police station gave a letter to him for holding<\/p>\n
    identification          parade      of accused Manik         Mohan       Gaikwad.\n<\/p>\n
    Identification          parade      was arranged on 24.9.2004 in                  his<\/p>\n
    cabin.        His     clerks collected dummies.              Police        brought<\/p>\n
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\n                                          (-29-)<\/p>\n
    witnesses.           He kept them in separate room.                   He called two<\/p>\n
    panchas for this identification parade.                         Six dummies were<\/p>\n
    asked     to        stand        in a row.    Police brought             Manik       Mohan<\/p>\n
    Gaikwad        accused          by concealing his face by               Burkha.          He<\/p>\n
    asked     him his name and informed him about identification<\/p>\n
    parade.         He        further     deposed that he asked               accused        to<\/p>\n
    select     his        place in the row of dummies and                     change       his<\/p>\n
    clothes.            The     accused     refused to change               his    clothes.<\/p>\n
\n\n    Accused        preferred serial No.4 in the row of dummies                             and\n\n    accordingly           stood       in the row.    He further deposed                  that\n\n\n\n\n                                                \n    thereafter           he     called     witness Deepali Jalindar                 in     his\n\n    cabin.         He     asked\n                                ig     Deepali to identify            the     accused        by\n\n    touching        his person from the row.            Deepali observed                   all\n                              \n    the     persons           and     identified accused         Manik       within        two\n\n    minutes.        Deepali was then sent to another room.                          Then he\n\n    asked     accused Manik that he can change his place in                                the\n      \n\n\n    row     and dress.              Accused did not change his dress but                     he\n   \n\n\n\n    changed        his        place     and stood at serial No.7.                  Then      he\n\n    called     witness Jalindar Narayan Shirsath.                         He asked         him\n\n\n\n\n\n    to     identify           the     accused    from the      row.          The     witness\n\n    Jalindar        identified accused Manik by touching his person\n\n    from     the        row.         Detailed panchanama         of     identification\n\n    parade     was        drawn        in presence of panchas.              He     put     his\n\n\n\n\n\n    signature        and also obtained signature of the panchas                              on\n\n    the     panchanama.               The panchanama shown to him                 bear     his\n\n    signature        and        signatures of the panchas.                The      contents\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 14:05:50 :::<\/span>\n                                         (-30-)\n\n\n\n    therein       are        true   and correct.         The    panchanama           is     at\n\n    Exh.59.         Memorandum         chart of identification                parade        of\n\n    witness       Deepali        is at Exh.60.       The memorandum chart                   of\n\n\n\n\n                                                                                   \n    witness       Jalindar of identification parade is at                          Exh.61.\n\n\n\n\n                                                           \n<\/pre>\n
    In all 12 persons were present for holding identification<\/p>\n
    parade.\n<\/p>\n
    .     He further deposed that on 13.4.2005 he again received<\/p>\n
    letter        from         police      station             for     holding            test<\/p>\n
    identification            parade, of accused Bhausaheb.                   The office<\/p>\n
    copy     of     that letter was shown to him is the                        same.        It<\/p>\n
    bears<\/p>\n
              the endorsement of their clerk.                    It is at          Exh.62.\n<\/p>\n
    He     immediately informed orally that test                       identification<\/p>\n
    parade        will         be   held   on     17.4.2005.             He      arranged<\/p>\n
    identification parade in his cabin.                     He collected dummies<\/p>\n
    who     are     appearing        similar with that           of      accused.           He<\/p>\n
    collected       dummies         as per the description given                   in     the<\/p>\n
    letter.         He collected 6 dummies.              He also collected                two<\/p>\n
    panchas.        Police brought accused Bhausaheb Mohan Mali by<\/p>\n
    concealing          his     face by “Burkha” in his cabin.                     Accused<\/p>\n
    did     not change his dress.              He informed accused that                   his<\/p>\n
    identification            parade     was     going    to     be      held        there.\n<\/p>\n
    Accused had chosen serial No.3 in the row.                           The witnesses<\/p>\n
    were     kept       in     separate room.       First he          called       witness<\/p>\n
    Jalindar.       He asked Jalindar to identify the accused from<\/p>\n
    the     standing          persons in the row.         Within         two     minutes,<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                                (-31-)<\/p>\n
    Jalindar identified accused by touching his person.                                        Then<\/p>\n
    Jalindar was sent to another room.                           He gave chance to the<\/p>\n
    accused           to     change his dress and place in the row.                              The<\/p>\n
    accused did not change his dress but he changed his place<\/p>\n
    in     the        row.        Accused preferred serial No.4 in the                          row.\n<\/p>\n
    He     then called witness Deepali and asked her to identify<\/p>\n
    the     accused              from     the      row.      Deepali     saw       all      persons<\/p>\n
    standing           in        the row and within two                minutes        identified<\/p>\n
    accused           at     Sr.        No.4.      He drew detailed            panchanama          of<\/p>\n
    identification                  parade.            The      panchanama         bears         his<\/p>\n
    signature and signature of the panchas.                               Memorandum chart<\/p>\n
    also<\/p>\n
             bears his signature and signature of panchas.                                       The<\/p>\n
    contents           of the panchanama of identification parade                                and<\/p>\n
    chart        of        identification             parade are true           and      correct.\n<\/p>\n
    Panchanama              of     T.I.       parade is at Exh.63 and                 charts       of<\/p>\n
    identification                 parade       are     at    Exh.      64     and       65.     The<\/p>\n
    accused           before        the       court is the same.             The      chart      and<\/p>\n
    panchanama              bear        his     signature and        signatures           of     the<\/p>\n
    panchas.               He further deposed that in all 12 persons were<\/p>\n
    present while holding identification parade.\n<\/p>\n
    .      In his cross examination he denied that visitors, who<\/p>\n
    visit        the        premises          of    Tahsil office,           could       see     the<\/p>\n
    accused.               He further denied that the accused were                             shown<\/p>\n
    to     the        witnesses           first in the police and he                   drew      the<\/p>\n
    panchanama              in     the        police station.        Even in          his      cross<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                      (-32-)<\/p>\n
    examination          nothing was brought on record by the defence<\/p>\n
    which would lead to disbelieve the evidence of P.W.9.\n<\/p>\n
    15.        P.W.10     is Dr.     Suchitra Bappasaheb        Khedkar.           She<\/p>\n
    examined           accused     Manik   Mohan   Gaikwad.          She        found<\/p>\n
    following          injuries over the body of accused Manik                  Mohan<\/p>\n
    Gaikwad:-\n<\/p>\n
          1.      There     were    linear abrasions over left side                  of<\/p>\n
                  face     as    shown in the diagram and          also       linear<\/p>\n
                  abrasion       over left side of the neck as shown in<\/p>\n
                  the<\/p>\n
                          diagram    and right side of the           neck       also.\n<\/p><\/blockquote>\n
                  There was linear abrasion over posterior surface<\/p>\n
                  of     left    shoulder 1 cm.    Linear       abrasion         over<\/p>\n
                  right side of lower back.\n<\/p><\/blockquote>\n
    .      She further deposed that following samples were                       sent<\/p>\n
    for chemical analyser:-\n<\/p>\n
    1.         Nails<\/p>\n
    2.         Pubic hair<\/p>\n
    3.         Semen<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                        (-33-)<\/p>\n
    4.       Blood in plaint and citrate<\/p>\n
    5.       Pant and Banian<\/p>\n
    .      She identified accused Manik Mohan Gaikwad before the<\/p>\n
    court.        She       opined     that he is       capable       of     committing<\/p>\n
    sexual intercourse.              The medical certificate was shown to<\/p>\n
    her.        She        identified her signature and stated that                      the<\/p>\n
    contents are true and correct which is at Exh.69.\n<\/p>\n
    .      In\n                              \n                 her cross examination she denied the                      suggestions\n\n    that     the accused was not having injuries which are shown\n                             \n<\/pre>\n
    in     Exh.69.         Nothing was brought on record by the defence<\/p>\n
    counsel to disbelieve the version of P.W.10.\n<\/p>\n
    16.      P.W.11 is the police Inspector Pandharinath Baburao<\/p>\n
    Kedare.           In    his examination in chief he stated that                        on<\/p>\n
    23.8.2004         at     about    23.20     hours    Head       Constable           Puri<\/p>\n
    informed      him that one girl of 13 years was kidnapped and<\/p>\n
    raped.        He       immediately     came    to     the     police         station.\n<\/p>\n
    Prosecutrix            was   brought   by her parents in               the      police<\/p>\n
    station.           P.S.I.        Tidake also came there as he                 was      on<\/p>\n
    patrolling         duty in that area.         Immediately she was                  sent<\/p>\n
    for     medical examination.           After medical examination                     she<\/p>\n
    was     brought back to the police station.                     Then       complaint<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                              (-34-)<\/p>\n
    was lodged at Exh.42.                    Same is in the handwriting of head<\/p>\n
    Constable           Puri.           He   further deposed      that       prosecutrix<\/p>\n
    signed        the        complaint.        He further deposed          that       P.S.I.\n<\/p>\n
    Tidake        took        the prosecutrix and her father for                    medical<\/p>\n
    examination           to Rural Hospital, Pathardi.                  The father           of<\/p>\n
    prosecutrix           had       also suffered injures and              referred          to<\/p>\n
    Rural       hospital Pathardi alongwith medical yadi Exh.                                48<\/p>\n
    and     49.         He further deposed that they blocked area                          for<\/p>\n
    arresting           the accused and started searching the accused.<\/p>\n
\n\n    He     further           reported        that the incident        took       place       on\n\n\n\n\n                                                \n    22.8.2004.               He     further deposed that on           23.8.2004          they\n\n    visited        the\n                                  \n                              forest land where the incident took                     place.\n\n    Father        of the prosecutrix Jalindar showed the spot.                               He\n                                 \n    seized 10 muddemal articles i.e.                   pieces of hairs, pieces\n\n    bangles,         iron pipe, midi skirt having blood stains, torn\n\n    top     having           blood stains, one white nicker having                      blood\n      \n\n\n    stains,        some stones having blood stains, hair bow,                            hair\n   \n\n\n\n    pin.        He      identified           article Nos.    1 to 10         before        the\n\n    Court       and stated that those are the same articles                             which\n\n\n\n\n\n    were     attached             from the spot.      He further          admitted         the\n\n<\/pre>\n
    signature           on        the    panchanama which is        at     Exh.29.           He<\/p>\n
    further        deposed          that muddemal receipt was shown to                     him<\/p>\n
    which bears his signatures at Exh.71.\n<\/p>\n
    .      He     further           deposed that on     search,          they     arrested<\/p>\n
    accused        Manik Mohan Gaikwad on 23.8.2004 at 17.30 hours.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span><\/p>\n
                                           (-35-)<\/p>\n
    Arrest     panchanama was drawn in presence of two                              panchas.\n<\/p>\n
    He admits the arrest panchanama shown to him.                                He further<\/p>\n
    admits that panchanama Exh.72 contains his signature.                                      He<\/p>\n
    further     deposed            that     accused Manik was sent                  to    Rural<\/p>\n
    Hospital        Pathardi alongwith Yadi at Exh.68.                         He     further<\/p>\n
    stated     that       he seized sweater and underpant of                          accused<\/p>\n
    Manik in presence of panchas under panchanama Exh.31.                                      He<\/p>\n
    further stated that Muddemal is deposited with the clerk.\n<\/p>\n
    The muddemal receipt shown to him is the same which bears<\/p>\n
    his    signature          at     Exh.73.       He    identified          the         clothes<\/p>\n
    articles 11 and 12.               He further deposed that he requested<\/p>\n
    Tahsildar       to<\/p>\n
                              draw    map     of the spot          vide      Exh.38.           He<\/p>\n
    further     deposed that clothes of accused Bhausaheb                                 Mohan<\/p>\n
    Mali were seized during search of his house under Exh.33.\n<\/p>\n
    He admits signature of panch at Exh.33 as well as Exh.74.\n<\/p>\n
    He    further        deposed that he obtained police                       custody         of<\/p>\n
    accused     Manik till 6.9.2004.                 He further states that                    on<\/p>\n
    2.9.2004         Muddemal         was     sent       to       Chemical           Analyser<\/p>\n
    Aurangabad        with         police constable Jabbar Pathan,                       buckle<\/p>\n
    No.419.         He further deposed that on 9.9.2004 he obtained<\/p>\n
    permission           of        J.M.F.C.        Pathardi           to       hold         test<\/p>\n
    identification parade of accused Manik Mohan Gaikwad.                                      He<\/p>\n
    identified        his      signature on the letter at                    Exh.76.           He<\/p>\n
    further     deposed that on 12.9.2004 he requested Tahsildar<\/p>\n
    Pathardi to hold identification parade.                           Copy of the said<\/p>\n
    letter     is     at       Exh.58.        He        further     deposed          that      on<\/p>\n
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\n                                       (-36-)<\/p>\n
    24.9.2004         test identification parade was held of accused<\/p>\n
    Manik        in Tahsil Office, Pathardi.             A proclamation report<\/p>\n
    was     sent       against      absconding accused No.2             to        J.M.F.C.\n<\/p>\n
    Pathardi          under Section 82 and 83 of Cr.P.C..                    He     issued<\/p>\n
    letter to Superintendent of Police, Ahmednagar to declare<\/p>\n
    accused Bhausaheb as absconding.                He further deposed that<\/p>\n
    he     got     knowledge that Bhausaheb was arrested                       in    cycle<\/p>\n
    theft in C.R.            No.    45 of 2003 under Section 379 r.w.                     34<\/p>\n
    of     I.P.C.         by    Pune police.      On 22.3.2005            he      arrested<\/p>\n
    accused        Bhausaheb with the permission of the Court.                            He<\/p>\n
    sought       his police custody till 25.3.2005.                    On      31.3.2005<\/p>\n
    he     requested<\/p>\n
                             J.M.F.C.     Pathardi to grant permission                    to<\/p>\n
    hold     identification          parade     of accused         Bhausaheb.             He<\/p>\n
    requested           Tahsildar       vide    Exh.62      for      holding           test<\/p>\n
    identification             parade      of      accused         Bhausaheb            and<\/p>\n
    accordingly           Tahsildar held identification parade in                       his<\/p>\n
    office       of     accused Bhausaheb.         He further          deposed        that<\/p>\n
    charge sheet was submitted by him against accused No.2 on<\/p>\n
    28.4.2005,         as      he   was earlier absconding.                 He      further<\/p>\n
    deposed        that      he received C.A.       report.          He      identified<\/p>\n
    C.A.         report at Exh.82 to 85.           He identified the accused<\/p>\n
    before the Court.\n<\/p>\n
    .      In his cross examination he admitted that he has                             not<\/p>\n
    specifically            mentioned in the complaint about committing<\/p>\n
    rape     by the accused in the second rotation.                         He      further<\/p>\n
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\n                                             (-37-)<\/p>\n
    deposed        that           by way of correction figure 23 was                     scored<\/p>\n
    out     and        22 is written in the complaint.                     He denied          all<\/p>\n
    other suggestions of the defence counsel.                              He denied that<\/p>\n
    accused        No.1 went to demand money to Bajirao Dada                               Shete<\/p>\n
    and     there           was quarrel between Bajirao and accused                         No.1<\/p>\n
    and     therefore, on the say of Bajirao he arrested accused<\/p>\n
    No.1     in        this        crime.      He denied that          he     has      falsely<\/p>\n
    deposed        before          the      Court.       Nothing       substantial            was<\/p>\n
    brought        out        by the defence on record to disbelieve                          the<\/p>\n
    evidence of P.W.11.\n<\/p>\n
    17.      P.W.1<\/p>\n
                             Dagadu is panch to the spot panchanama.                            In<\/p>\n
    his     deposition             at      Exh.28 he stated that             spot      of     the<\/p>\n
    incident           is     at a distance of 700 to 800 feet                      from      the<\/p>\n
    village.            The spot is situated in the field of                         Jalindar<\/p>\n
    Narayan        Shirsath, father of the prosecutrix.                           He further<\/p>\n
    deposed that incident of rape took place at a distance of<\/p>\n
    about        800        feet        towards eastern side of            the      house       of<\/p>\n
    Jalindar.           He further deposed that some pieces of bangle,<\/p>\n
    hairs,        hair        pin,        nicker, blouse etc.            near       about       10<\/p>\n
    things        were seized by the police from the spot under the<\/p>\n
    panchanama.                   He     further     deposed      that       police         drew<\/p>\n
    panchnama           in        his presence at 7.00 a.m.to 8.30 a.m.                         on<\/p>\n
    23.8.2004.               He        further deposed that there             was      another<\/p>\n
    panch Ajinath Mahadeo Shirsath.                      He admitted the contents<\/p>\n
    of     the     panchanama.               He admitted his signature                 on     the<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                          (-38-)<\/p>\n
    panchanama            at     Exh.29.        He      also      identified             seized<\/p>\n
    articles.            In his cross examination his testimony remain<\/p>\n
    unshattered.\n<\/p>\n
    18.      P.W.2        Bhausaheb Shankar Shirsath is another                            panch<\/p>\n
    witness.         His deposition is at Exh.30.                      He deposed           that<\/p>\n
    on     23.8.2004           police    called         him     at     police        station.<\/p>\n
\n\n\n\n\n                                                              \n    clothes        of accused Manik Mohan Gaikwad were seized.                                One\n\n    blue     colour        sweater       and     blue     colour         underpant          were\n\n    seized.         He further deposed that one Mahadeo Kondiba was\n\n\n\n\n                                               \n    another        panch.         He     admitted        his      signature          and      the\n\n    contents        in\n                               \n                           panchanama at Exh.31.                Nothing was            brought\n\n    out     in the cross examination to disbelieve the                               evidence\n                              \n    of P.W.2.\n\n\n\n    19.      P.W.3        is     one Mr.       Sambhaji Maruti             Warkad,         whose\n      \n\n\n    evidence        is     at Exh.32.          In his examination in chief                      he\n   \n\n\n\n    deposed        that        Inspector Tidake called him in the                        police\n\n<\/pre>\n
    station on 25.8.2004.                He deposed that clothes of accused<\/p>\n
    Bhausaheb        Mohan        Mali     were found in the hut                  which       was<\/p>\n
    owned     by     one        Mohan Mali, father of accused                     No.2.         He<\/p>\n
    further        deposed        that one white colour shirt was                        having<\/p>\n
    blood     stains.           The clothes were seized under panchanama,<\/p>\n
    article        Nos.        14 and 15.       He identified the clothes.                      He<\/p>\n
    also     identified           the    contents       of      panchanama           and      his<\/p>\n
    signature        which is at Exh.33.             In the cross               examination<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                         (-39-)<\/p>\n
    nothing        was     brought      out on record by the              counsel       for<\/p>\n
    defence to disbelieve his evidence.\n<\/p>\n
    20.         P.W.4 Jagdish Mohanrao Gade.             He deposed that              from<\/p>\n
    4.8.2003        he     was    working as Circle Revenue               Officer         in<\/p>\n
    Pathardi taluka.             He deposed that he went to Shirsathwadi<\/p>\n
    and        drew a map of the spot on 4.12.2004.                  He     identified<\/p>\n
    his        signature       and the contents of the map which                   is     at<\/p>\n
    Exh.39.\n<\/p>\n
    21.         P.W.12     Ambadas      Hari Sase is one of            the      witness,<\/p>\n
    whose evidence is at Exh.88.                  He deposed that he gave his<\/p>\n
    opinion        about       the age of the prosecutrix at Exh.32,                      as<\/p>\n
    under:-\n<\/p>\n
          1.      Ossification          centre for head of radius appeared<\/p>\n
                  (6) but not fused (14)<\/p>\n<\/blockquote>\n
          2.      Ossification           centre    for      medical            epicondyl<\/p>\n
                  appeared (5) but not fused (14).\n<\/p><\/blockquote>\n
          Hence, Radiological age is between 6 to 14 years.                             The<\/p>\n
          certificate          bears    his    signature vide          Exh.53.          The<\/p>\n
          contents       are     true    and     correct.        It       is    in      his<\/p>\n
          handwriting.<\/p><\/blockquote>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span><\/p>\n
                                             (-40-)<\/p>\n
    .     He was cross examined.                   There is nothing to disbelieve<\/p>\n
    the evidence of P.W.12.\n<\/p>\n
    22.      P.W.13           Sadashiv Gangadhar Puri,                police        constable<\/p>\n
    whose     evidence              is    at      Exh.91.      He     deposed        in       his<\/p>\n
    examination in chief that on 22.8.2004 from 8.00 a.m.                                       to<\/p>\n
    23.8.2004           8.00 a.m.           he was on P.S.O.          duty.       In between<\/p>\n
    10.45     p.m.        to 11.           p.m.     he received telephonic message<\/p>\n
    from     Shirsathwadi.                Again he received another phone call<\/p>\n
    after     five        minutes.             He received message           that      thieves<\/p>\n
    kidnapped           one<\/p>\n
                                girl.          He informed the said fact to                 P.I.\n<\/p>\n
    Kedare        on     phone           and P.S.I.       Tidake     on    wireless.            He<\/p>\n
    called         policemen             for     police      line.        He    then        gave<\/p>\n
    information           on        phone      to control room and             others.          He<\/p>\n
    further        deposed that after half an hour P.S.I.                              Tidake,<\/p>\n
    prosecutrix,              her     parents       came in the        police        station.\n<\/p>\n
    Thereafter           Kedare P.I.            also came in the police station.\n<\/p>\n
    Prosecutrix           Deepali Jalindar Shirsath narrated complaint<\/p>\n
    to     him.         He     reduced the same in             his        handwriting         and<\/p>\n
    obtained           signature          of    Deepali on      the       complaint.            He<\/p>\n
    identified           his        signature on the complaint                 Exh.42.          He<\/p>\n
    deposed        that        P.I.       Kedare was present when he took                     the<\/p>\n
    complaint.            He further deposed that prosecutrix was sent<\/p>\n
    for     medical           examination.           He further deposed              that       he<\/p>\n
    registered           crime        No.110 of 2004 under Section 376                      (g),<\/p>\n
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\n                                       (-41-)<\/p>\n
    452,323      of     I.P.C.        He admitted his            signature          on      the<\/p>\n
    complaint          at     Exh.42.      He        further        deposed         that     he<\/p>\n
    registered the said complaint at 0.45 hours on 23.8.2004.\n<\/p>\n
    He    also informed the police station of Ambhora and Ashti<\/p>\n
    about the said crime.\n<\/p>\n
    .     In    his cross examination, the defence counsel                              could<\/p>\n
    not      brought         anything    on      record        to     disbelieve            his<\/p>\n
    evidence.\n<\/p>\n
    23.      P.W.14 is Jabbar Rahimkha Pathan, whose evidence is<\/p>\n
    at    Exh.92.\n<\/p>\n
                            He is constable buckle No.                419 serving            in<\/p>\n
    Pathardi police station.              He stated that he received 9 to<\/p>\n
    10    sealed packets from Pathardi police station alongwith<\/p>\n
    letter.       The        letter was addressed to C.A.                    Aurangabad.\n<\/p>\n
    On    3.9.2004 he went to C.A.               Aurangabad.            He handed over<\/p>\n
    the     said letter and sealed muddemal to C.A.                          office         and<\/p>\n
    obtained receipt of clerk of that office.\n<\/p>\n
    24.     P.W.15 is Vikas Govindrao Tidake, his evidence is at<\/p>\n
    Exh.93.       He        deposed     that    on        22.8.2004        he       was      on<\/p>\n
    patrolling         duty in Government Jeep.                At 10.45 p.m.              Head<\/p>\n
    constable         Puri    informed     him       on      wireless          to      go    to<\/p>\n
    Shirsathwadi         as the thieves arrived there and therefore,<\/p>\n
    he    proceeded          to Shirsathwadi.         He further deposed                  that<\/p>\n
    again      Head     Constable       Puri further           informed          him      that<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                          (-42-)<\/p>\n
    thieves     have        kidnapped one girl.              He went to            the     spot<\/p>\n
    from     where        the     girl    was      kidnapped.             At     that      time<\/p>\n
    villagers        were already there.            He made enquiry with                     the<\/p>\n
    prosecutrix        in her house, who narrated the incident.                                He<\/p>\n
    further     deposed          that he took prosecutrix to the                        police<\/p>\n
    station.         Head        Constable      Puri        recorded        complaint          of<\/p>\n
    Deepali.         He     further deposed that Deepali was taken                             to<\/p>\n
    Rural     Hospital,          Pathardi.        He further deposed                that       on<\/p>\n
    25.8.2004 he called two panchas and went to Dhamangaon at<\/p>\n
    the house of accused Bhausaheb Mohan Mali and took search<\/p>\n
    of     his house.           He further deposed that father of accused<\/p>\n
    Bhausaheb handed over clothes of accused i.e.                                white full<\/p>\n
    shirt     and white pant, which were changed by the                               accused<\/p>\n
    before two days as per the say of his father.                                There were<\/p>\n
    blood     stains.        He drew seizure panchanama in presence of<\/p>\n
    panchas.         He     admitted his signature on the                      panchanama.\n<\/p>\n
    In     his cross examination he denied that whatever he                                  has<\/p>\n
    stated     in     chief        examination         is     not     true.           Nothing<\/p>\n
    specially        was        brought    on      record        to     disbelieve           the<\/p>\n
    evidence of P.W.15.\n<\/p>\n
    25.      P.W.16 Aurn Rangnath Bhagwat, who is Head Master of<\/p>\n
    Zilla     Parishad School, where prosecutrix was prosecuting<\/p>\n
    her studies.           By way of his evidence, the prosecution has<\/p>\n
    proved that certificate issued by the school about age of<\/p>\n
    the     prosecutrix          is correct as per the                original          school<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                          (-43-)<\/p>\n
    record maintained by the school.\n<\/p>\n
    26.      On        careful     perusal     of the    deposition           of      P.W.5<\/p>\n
    prosecutrix, it reveals that the incident took place in a<\/p>\n
    very     ghastly           manner.    The accused persons came               to     the<\/p>\n
    house of prosecutrix.                First they assaulted the father of<\/p>\n
    the prosecutrix.             Injury certificate issued in respect of<\/p>\n
    father        of     prosecutrix       Jalindar     by    P.W.8       shows       that<\/p>\n
    Jalindar had sustained injuries on his person, is a clear<\/p>\n
    evidence           that Jalindar was assaulted by accused persons.\n<\/p>\n
    Accused persons forcibly opened the door of the house.\n<\/p>\n
    27.      In        the light of bulb, the prosecutrix clearly                       saw<\/p>\n
    the     accused        persons.       Not only this, she has              correctly<\/p>\n
    described           those     persons while narrating the               complaint.\n<\/p>\n
    She     categorically          in     her deposition has           narrated         the<\/p>\n
    incident.            She had given minute details in the complaint<\/p>\n
    as     well        as in her deposition.          She narrated          about       the<\/p>\n
    colour        of     the clothes, which were wore by                the      accused<\/p>\n
    persons.            She narrated about the face cut and complexion<\/p>\n
    of     the accused persons.             She further narrated about                  the<\/p>\n
    role     played by each of the accused i.e.                    who caught hold<\/p>\n
    her     hands        and     who caught hold her legs.              She        further<\/p>\n
    narrated           that when she resisted the accused they slapped<\/p>\n
    her.      She        further     deposed      that she     saw      the        accused<\/p>\n
    persons        in     the light of bulb and after that one of                       the<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                                (-44-)<\/p>\n
    accused broke that bulb.                      She categorically stated in her<\/p>\n
    deposition           that after that the person wearing white pant<\/p>\n
    caught        her     hands and person wearing black shirt                              caught<\/p>\n
    hold     her legs and lifted her and brought her out of                                      the<\/p>\n
    house.        When she was trying to cry and tried to shout for<\/p>\n
    help,        she     was slapped by the accused persons.                            She      was<\/p>\n
    forcibly           taken        to     hill     side.    In      her      statement          she<\/p>\n
    further        deposed           that       accused persons           first        tore      her<\/p>\n
    clothes        i.e.         midi           skirt and blouse and             then        accused<\/p>\n
    persons        removed           her nicker.         Accused persons raped                   her<\/p>\n
    twice.         She has given minute details who has raped first<\/p>\n
    and<\/p>\n
            who has raped afterwards.                     She further deposed                  that<\/p>\n
    while        resisting accused persons, she sustained                               injuries<\/p>\n
    on her face and chest etc.<\/p>\n
    28.      The        incident took place in the field of father                                 of<\/p>\n
    prosecutrix.               It        has    come in the deposition                 of     panch<\/p>\n
    witness        that spot of incident is at a distance of 700 to<\/p>\n
    800     feet        from the house of P.W.6.                   The prosecutrix               has<\/p>\n
    categorically              narrated          the    story      about        the     incident<\/p>\n
    starting from opening of the door by the accused persons,<\/p>\n
    their        entry in the house, role played by the accused                                    in<\/p>\n
    catching           legs and hands of the prosecutrix, her                             careful<\/p>\n
    observations           of        the accused persons in the bulb                        light,<\/p>\n
    one     of     the     accused broke the                bulb.          Accused          persons<\/p>\n
    dragged        her     out from the house when she was crying                                and<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                           (-45-)<\/p>\n
    tried to shout for help, the accused persons slapped her.\n<\/p>\n
    They     dragged            her     near hill.     After       they       removed        her<\/p>\n
    clothes           committed          rape    one    after       another.               While<\/p>\n
    resisting          the accused persons, she sustained injuries on<\/p>\n
    her     chest and face.               She narrated the complete story                      in<\/p>\n
    detail.       Her complete concentration was there and in that<\/p>\n
    state of mind with full concentration she saw the accused<\/p>\n
    persons       in the light of bulb inside the house.                            She      has<\/p>\n
    categorically               in    her deposition stated that                 after       she<\/p>\n
    carefully          saw        the    accused persons one of              the      accused<\/p>\n
    broke       the bulb.             She also had more opportunity to                     watch<\/p>\n
    their faces and from very close distance, when they raped<\/p>\n
    her.\n<\/p>\n
    .      In    her        deposition          she further      deposed         that       when<\/p>\n
    accused       persons            saw that some persons            were       proceeding<\/p>\n
    towards       the           spot,    they ran away from           the      spot.         The<\/p>\n
    father of prosecutrix alongwith other villagers alongwith<\/p>\n
    P.W.7       went        to the spot.         The prosecutrix narrated                  them<\/p>\n
    incident          in        minute detail.      The incident took place                    at<\/p>\n
    about       10.30        p.m.        Immediately      after         the         villagers<\/p>\n
    proceeded          to the spot of incident because the mother                              of<\/p>\n
    the     victim         ran        away to the village          when       the     accused<\/p>\n
    persons       assaulted             Jalindar before they entered                  in     the<\/p>\n
    house       and        on     her call, villagers came there                   and      then<\/p>\n
    father       Jalindar,            who was assaulted by accused,                   in     the<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                          (-46-)<\/p>\n
    torch        light     and        head lamp of    motor     cycle,        proceeded<\/p>\n
    towards        the spot of the incident.            By that time, accused<\/p>\n
    persons        ran     away.\n<\/p>\n
    29.      Narration           of     the prosecutrix about          incident         was<\/p>\n
    immediate        without lapse of any time.               By that time,             the<\/p>\n
    police persons who were on patrolling also arrived there.<\/p>\n
\n\n\n\n\n                                                        \n    Immediately          the prosecutrix alongwith father accompanied\n\n    by     one police person, who was on patrolling went to                             the\n\n    police        station and complaint came to be lodged.                       If     the\n\n\n\n\n                                             \n    time     of the complaint is taken into consideration, which\n\n    was     at\n                               \n                   0.45 hours on 23.8.2004, it means                   the     incident\n\n    took     place at about 10.30 p.m.               on 22.8.2003 and              within\n                              \n    two     hours        the     prosecutrix narrated about             incident          in\n\n    minute details.            This is the case where the complaint was\n\n    lodged        so promptly and there was no breathing time                         even\n      \n\n\n    to     think     that the prosecutrix can add something in                          her\n   \n\n\n\n    version.        If narration of the prosecutrix as taken in the\n\n    complaint        as well as in the deposition before the Court,\n\n\n\n\n\n    it     clearly        reveals       that the     incident      certainly          took\n\n    place.        She saw accused persons in the light of bulb.\n\n\n\n    .      Immediately           after complaint was lodged,              prosecutrix\n\n\n\n\n\n    was referred to the medical Officer.                    Medical Officer has\n\n    examined        her and clearly opined that rape was                      committed\n\n    on     her.     The father of prosecutrix was also examined                           by\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 14:05:50 :::<\/span>\n                                      (-47-)\n\n\n\n    Doctor     after       her examination.             P.W.8 in her          deposition\n\n    has     stated that Jalindar also sustained injuries and                                to\n\n    that      effect         she    issued          certificate.              There         is\n\n\n\n\n                                                                                   \n<\/pre>\n
    overwhelming medical evidence about the prosecutrix.\n<\/p>\n
    .      So far as the age of the prosecutrix is concerned, in<\/p>\n
    deposition          of P.W.8 she has stated that her age is about<\/p>\n
    13     years.       The age of the prosecutrix has been proved by<\/p>\n
    the prosecution through P.W.12 and P.W.16.                           P.W.12 in his<\/p>\n
    examination          has stated that on ossification test her age<\/p>\n
    was     in between 6 to 14 years.               P.W.16 is the Head Master<\/p>\n
    of<\/p>\n
           the school, who produced evidence in respect of                              date<\/p>\n
    of     birth        of prosecutrix, maintained by the school.                           So<\/p>\n
    far as the incident of rape is concerned, the prosecution<\/p>\n
    has proved the same beyond any doubt.\n<\/p>\n
    30.      If     the     sequence       of     the    events      is     taken       into<\/p>\n
    consideration,          that     incident took place at 10.30                      p.m.,<\/p>\n
    immediately          villagers     alongwith         father of          the      victim<\/p>\n
    reached        to    the spot then police persons                  on     patrolling<\/p>\n
    also      reached         to    the         spot.     Police       persons          took<\/p>\n
    prosecutrix          alongwith her father to the police                      station.\n<\/p>\n
    After     going to the police station she narrated complaint<\/p>\n
    immediately.           All     these    events took place               within        2\/3<\/p>\n
    hours     including          medical examination of              prosecutrix            as<\/p>\n
    well     as P.W.6 father of the prosecutrix.                       From all these<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                      (-48-)<\/p>\n
    events     inference can be drawn that prosecution story                             is<\/p>\n
    absolutely       correct.       There was no room of doubt.                   Noting<\/p>\n
    has     been brought by the defence on record to                       disbelieve<\/p>\n
    all these events.\n<\/p>\n
    31.      P.W.8     Dr.       Manisha Narayan Hange          has      immediately<\/p>\n
    after      the     incident         examined     prosecutrix.              In      her<\/p>\n
    elaborate evidence, she has opined that injuries found on<\/p>\n
    face of the prosecutrix.              She has also noted swelling and<\/p>\n
    contusions       on rest of the body of prosecutrix.                      She      has<\/p>\n
    also     examined genitals of the prosecutrix and found that<\/p>\n
    hymen     was     traced
\n                            ig    off.     There was     presence          of       second<\/p>\n
    degree     perennial         tear    noted on     left      media        laterally<\/p>\n
    including posterior vaginal wall upto 3 cms (b) perennial<\/p>\n
    muscle     (c)     perennial skin upto 3 cms.                 Fresh        bleeding<\/p>\n
    present        through wound.        There was tenderness over                  supra<\/p>\n
    pubic     area     present.         In her opinion, there            was      recent<\/p>\n
    forceful sexual intercourse on the person of prosecutrix.\n<\/p>\n
    Accordingly,           she     issued          medical      certificate              of<\/p>\n
    prosecutrix vide Exh.50.              In the cross examination of Dr.<\/p>\n
    Manisha        she has explained that bleeding was due to fresh<\/p>\n
    cut wound and not due to menstrual period.                        Thus evidence<\/p>\n
    of     P.W.8     Dr.     Manisha       has proved        sexual      assault         on<\/p>\n
    prosecutrix.\n<\/p>\n
    .      Already in the foregoing paras the details in respect<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                      (-49-)<\/p>\n
    of     examination       in chief of P.W.8 Dr.           Manisha has             been<\/p>\n
    discussed.         In     cross examination nothing is brought                      on<\/p>\n
    record       to disbelieve the evidence of P.W.8 Dr.                      Manisha.\n<\/p>\n
    P.W.8     Dr.      Manisha       had     also an   occasion         to       examine<\/p>\n
    accused        Bhausaheb    on     22.3.2005.      In    her      evidence          on<\/p>\n
    clinical        examination      of accused Bhausaheb,              she      stated<\/p>\n
    that     patient is potent.            The said medical certificate is<\/p>\n
    at Exh.55.\n<\/p>\n
    .      Her     evidence     also       disclosed   that      the       father       of<\/p>\n
    prosecutrix        Jalindar P.W.6 had also sustained                    injuries.\n<\/p>\n
    He was also examined by her immediately after prosecutrix<\/p>\n
    was medically examined.\n<\/p>\n
    32.      P.W.10     Dr.     Suchitra examined accused Manik                     Mohan<\/p>\n
    Gaikwad        on 23.8.2004 immediately after lapse of one                        day<\/p>\n
    from     the     date     of incident.       On examination            she      found<\/p>\n
    injuries on the person of the accused.                   She saw there was<\/p>\n
    linear       abrasions     over     left side of face            and      so     also<\/p>\n
    linear       abrasion      over left side of the neck and                  on     the<\/p>\n
    right     side of the neck.            There was linear abrasion                over<\/p>\n
    posterior        surface of left shoulder and linear                    abrasions<\/p>\n
    over     right side of lower back.            According to evidence of<\/p>\n
    Dr.     Suchitra, all injuries were within 24 hours and they<\/p>\n
    were     possible by hard and blunt object with light                          sharp<\/p>\n
    edge.        These injuries, are possible by nails when person<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                            (-50-)<\/p>\n
    is     sexually        assaulted.           Dr.     Suchitra        also       collected<\/p>\n
    samples        and        sent for chemical analysis.                   According          to<\/p>\n
    her,     accused          Manik Mohan was capable to                  commit        sexual<\/p>\n
    intercourse.           Accordingly, she issued medical certificate<\/p>\n
    which     is     at        Exh.69.        The     suggestions         put      that      the<\/p>\n
    injuries can be possible by fall is denied.                              The evidence<\/p>\n
    of     P.W.10        is     convincing and proved              beyond        reasonable<\/p>\n
    doubt     that        the        prosecutrix was raped and               accused         are<\/p>\n
    potent to commit the offence of rape.\n<\/p>\n
    33.      Evidence           of     P.W.1 Dagadu Ghuge           has      proved        spot<\/p>\n
    panchanama at Exh.29.\n<\/p>\n
                                ig         Same is not shattered in the cross\n\n    examination.              All     articles        which      were       mentioned          in\n                              \n    panchanama           were       identified by P.W.1 before                 the      Court.\n\n<\/pre>\n
    Those articles were also identified by the prosecutrix in<\/p>\n
    her     oral evidence.             The prosecution has duly proved spot<\/p>\n
    panchanama.            Finding         those      articles in         detail        itself<\/p>\n
    indicates        that the prosecutrix was sexually assaulted in<\/p>\n
    that area during night time.\n<\/p>\n
    .      P.W.2     Bhausaheb Shirsath is another panch,                            who     has<\/p>\n
    proved     seizure          of clothes of accused Manik Mohan                         under<\/p>\n
    panchanama           Exh.31.           Evidence of P.W.3 Sambhaji                 Gaikwad<\/p>\n
    has     proved seizure of clothes of accused Bhausaheb                                 from<\/p>\n
    his     hut,     where           his    father      was    present.            The     said<\/p>\n
    panchanama is at Exh.33.                  Nothing is brought on record by<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                     (-51-)<\/p>\n
    way     of cross examination by the appellants to disbelieve<\/p>\n
    the     evidence of P.Ws.2 and 3.          The evidence of both                the<\/p>\n
    witnesses is quite convincing.\n<\/p>\n
    .      Evidence of P.W.7 Ajinath Dnyandeo is also additional<\/p>\n
    chain     to   the prosecution story.          He went alongwith               the<\/p>\n
    mother of prosecutrix to the spot alongwith other persons<\/p>\n
    from     village and they went in search of the                  prosecutrix<\/p>\n
    to that extent there is nothing to doubt his testimony.\n<\/p>\n
    34.     Before we proceed to discuss about identification of<\/p>\n
    the      accused
\n                           igpersons     and   manner       in       which         the<\/p>\n
    identification        parade was conducted by the              prosecution,<\/p>\n
    we     would   like       to   refer certain    observations            of     the<\/p>\n
    Supreme Court in respect of importance of conducting test<\/p>\n
    identification parade.             The Hon’ble Supreme Court in case<\/p>\n
    of     Mahabir    Vs.     State of Delhi reported in AIR 2008                    SC<\/p>\n
    2343     has held that the test identification parade do not<\/p>\n
    constitute        substantive       evidence and identification                can<\/p>\n
    only be used as corroborative of statement in Court.                           The<\/p>\n
    main     object     of     holding    identification        parade        during<\/p>\n
    investigation        stage is to test memory of witnesses based<\/p>\n
    upon     first impression and also to enable prosecution                         to<\/p>\n
    decide     whether all or any of them could be cited as                        eye<\/p>\n
    witnesses of crime.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span><\/p>\n
                                         (-52-)<\/p>\n
    .     Test identification parade should be conducted as soon<\/p>\n
    as      possible          after     arrest      of    accused        to       eliminate<\/p>\n
    possibility         of accused being shown to witnesses prior to<\/p>\n
    parade.        The        purpose     of     holding      test       identification<\/p>\n
    parade     is to test and strengthen trustworthiness of                                 the<\/p>\n
    evidence.           It     is considered a safe rule of prudence                          to<\/p>\n
    generally       look       for corroboration of sworn testimony                           of<\/p>\n
    witnesses       in Court.          Test identification parade                    belongs<\/p>\n
    to    stage     of       investigation          there is       no      provision          in<\/p>\n
    Cr.P.C.        which        obliges investigating agency to hold                          or<\/p>\n
    confers a right upon accused to claim test identification<\/p>\n
    parade.\n<\/p>\n
                   It is further held that the test identification<\/p>\n
    parade are essentially governed by Section 162 of Cr.P.C.\n<\/p>\n
    Failure to hold same would not make inadmissible evidence<\/p>\n
    of identification in Court.                  It is further held that test<\/p>\n
    identification parade in appropriate case, may accept the<\/p>\n
    evidence       of        identification         even without           insisting          on<\/p>\n
    corroboration.\n<\/p>\n
    35.       We        have     to     proceed          keeping     in       mind        that<\/p>\n
    identification            parade is the stage of investigation                          and<\/p>\n
    there      is       no     provision       in    Cr.P.C.            which        obliges<\/p>\n
    investigating            agency     to     hold or confers a              right       upon<\/p>\n
    accused       to claim test identification parade.                          Further in<\/p>\n
    appropriate         cases,        court    may accept          the      evidence          of<\/p>\n
    identification            even without insisting of                  corroboration.\n<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span><\/p>\n
                                          (-53-)<\/p>\n
    We     have     to     bear        in mind that     failure       to      hold      test<\/p>\n
    identification           would       not make inadmissible evidence                    of<\/p>\n
    identification in Court.\n<\/p>\n
    36.      P.W.        11 Police Inspector who investigated the case<\/p>\n
    in     his     examination           in chief stated       that,       on        search,<\/p>\n
    accused        Manik Mohan Gaikwad was arrested on 23.8.2004 at<\/p>\n
    17.30        p.m.      hours.         Arrest   panchanama         was       drawn      in<\/p>\n
    presence        of two panchas.          He admitted his signature                   and<\/p>\n
    contents        of     panchanama before the Court at Exh.72.                          He<\/p>\n
    further        deposed        that    he sent accused         Manik         to     Rural<\/p>\n
    Hospital        Pathardi
\n                             ig    for medical examination.                He     further<\/p>\n
    deposed        that he seized sweater and under pant of accused<\/p>\n
    Manik        under panchanama at Exh.31 in presence of panchas.\n<\/p>\n
    He     further       deposed that clothes of accused Manik                        Mohan<\/p>\n
    Mali     were        seized     during     search    of     his      house         under<\/p>\n
    panchanama Exh.33.\n<\/p>\n
    .      He further deposed that he obtained police custody of<\/p>\n
    accused        Manik     till 6.9.2004.          On 2.9.2004 muddemal                was<\/p>\n
    sent     to     Chemical        Analyses at       Aurangabad         with        police<\/p>\n
    constable Jabbar Pathan.\n<\/p>\n
    .      On     9.9.2004        he      obtained    permission         of      J.M.F.C.\n<\/p>\n
    Pathardi        to hold identification parade of accused Manik.\n<\/p>\n
    He     admitted        that     the copy of letter shown to                  him     was<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                          (-54-)<\/p>\n
    signed       by        him    at Exh.76.          On    12.9.2004           he     requested<\/p>\n
    Tahsildar          Pathardi to hold identification parade.                                 That<\/p>\n
    letter       is at Exh.58.               On 24.9.2004 identification parade<\/p>\n
    of accused manik was held in Tahsil Officer, Pathardi.\n<\/p>\n
    .      Proclamation            report       was        sent      against          absconding<\/p>\n
    accused        No.2 by J.M.F.C.             Pathardi under Sections 82 and<\/p>\n
    83     of     Cr.P.C.         Letter was issued to                 Superintendent              of<\/p>\n
    Police,        Ahmednagar           to    declare           accused         Bhausaheb          as<\/p>\n
    absconding.              The said letter is at Exh.77.                       Copy of         the<\/p>\n
    said letter was also sent to the police station Ashti and<\/p>\n
    Ambhora.\n<\/p>\n
                      The said letters are Exh.78.\n<\/p>\n
    .      He     further         deposed       that       he     got     knowledge           about<\/p>\n
    whereabouts            of the absconding accused Bhausaheb, who was<\/p>\n
    arrested          in     cycle theft case in Crime No.                       45     of     2003<\/p>\n
    under Section 379 r.w.                   34 of I.P.C.            by Pune police.               He<\/p>\n
    requested J.M.F.C.                 Pathardi to transfer the said accused<\/p>\n
    to     this case.            Office copy of that letter is admitted by<\/p>\n
    him.        He also admitted signature on the said letter which<\/p>\n
    is     at     Exh.79.         He further deposed that on 22.3.2005                             he<\/p>\n
    arrested          accused Bhausaheb with permission of the                                Court<\/p>\n
    in     presence          of Panchas.         Accused was sent                for      medical<\/p>\n
    examination.                 His    police        custody          was      sought         till<\/p>\n
    28.3.2005.             On 31.3.2005, he requested J.M.F.C.                          Pathardi<\/p>\n
    to     grant       permission            to hold identification                  parade        of<\/p>\n
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\n                                      (-55-)<\/p>\n
    accused     Bhausaheb.          The said letter by which               permission<\/p>\n
    was     sought     is at Exh.81.         He admitted the contents                  and<\/p>\n
    signature        of the said letter.           Vide Exh.62 he            requested<\/p>\n
    Tahsildar        for     holding identification parade of                   accused<\/p>\n
    Bhausaheb        and accordingly Tahsildar held                 identification<\/p>\n
    parade of accused in his office.                 He further deposed that<\/p>\n
    charge     sheet        was   submitted        against    accused         No.2       on<\/p>\n
    28.4.2005.\n<\/p>\n
    .     In cross examination suggestion was put to him that he<\/p>\n
    is     giving     false evidence, he arrested accused                     No.1       on<\/p>\n
    23.8.2004<\/p>\n
                     under panchanama.        He denied said             suggestion.\n<\/p>\n
    He     further denied suggestion that Manik was not sent for<\/p>\n
    medical     examination.         He denied all suggestions.                      There<\/p>\n
    is     nothing     in     the    cross     examination          of     P.W.11        to<\/p>\n
    disbelieve        his     evidence.       He      further       deposed           that<\/p>\n
    identification          of    accused     No.2 Bhausaheb was              held       on<\/p>\n
    13.4.2005.\n<\/p>\n
    37.      We have carefully perused the examination in                            chief<\/p>\n
    of     investigation officer.            He has taken timely action in<\/p>\n
    the     matter.        Accused No.1 Manik was arrested immediately<\/p>\n
    on 23.8.2004.           His identification parade was conducted by<\/p>\n
    Executive        Magistrate,      Tahsildar on 24.9.2004.                   In     his<\/p>\n
    examination        in chief he has deposed all events from                         the<\/p>\n
    date     of arrest of the accused till identification parade<\/p>\n
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\n                                          (-56-)<\/p>\n
    was     conducted.         In the said identification parade                      P.W.5<\/p>\n
    and     P.W.6        identified       accused No.1      i.e.        Manik         Mohan<\/p>\n
    Gaikwad.          If     examination in chief of P.W.11 is                   perused<\/p>\n
    carefully,           in our considered opinion, there is no                       delay<\/p>\n
    in holding the identification parade of accused No.1.\n<\/p>\n
    38.      In       case of accused No.2 Bhausaheb it is stated                         by<\/p>\n
    P.W.11        that since he was absconding, he issued letter to<\/p>\n
    Superintendent           of Police, Ahmednagar to declare                    accused<\/p>\n
    Bhausaheb         as absconding, which is at Exh.77.                    He further<\/p>\n
    deposed that absconding accused Bhausaheb was arrested in<\/p>\n
    cycle        theft<\/p>\n
                            and     he   got      knowledge    about         the       same<\/p>\n
    immediately.            He requested J.M.F.C.         Pathardi for custody<\/p>\n
    of     the     said accused.            Copy of that letter is at              Exh.79<\/p>\n
    has     been      duly        proved.      The   absconding        accused         No.2<\/p>\n
    Bhausaheb         was arrested on 22.3.2005.              In his examination<\/p>\n
    in     chief he stated in detail about the events took place<\/p>\n
    from     his       arrest till identification parade                  of     accused<\/p>\n
    No.2     by       the    Executive Magistrate, which               was     held       on<\/p>\n
    13.4.2005.             Therefore, though the incident took place on<\/p>\n
    22.8.2004         and the identification parade of accused                        No.2<\/p>\n
    was     conducted on 13.4.2005, it cannot be said that there<\/p>\n
    was     delay.          In view of the observations of the                   Supreme<\/p>\n
    Court        in the case Mahabir (supra), identification parade<\/p>\n
    should       be    conducted as son as possible after arrest                          of<\/p>\n
    the    accused.          Therefore, there is no substance                    in     the<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                           (-57-)<\/p>\n
    contention          of        the advocate for        the    appellants\/accused<\/p>\n
    that     there          was     delay in     holding        test    identification<\/p>\n
    parade.\n<\/p>\n
    39.      P.W.9          is     the Executive Magistrate             who        conducted<\/p>\n
    identification               parade    of    accused        persons.           In      his<\/p>\n
    deposition          before the Court at Exh.57 he has stated that<\/p>\n
    on     12.9.2004          P.I.        Pathardi gave a letter to                him     for<\/p>\n
    holding test identification parade of accused Manik Mohan<\/p>\n
    Gaikwad.             He        further      deposed         that      he        arranged<\/p>\n
    identification               parade    on 24.9.2004 in his             cabin.          His<\/p>\n
    clerks<\/p>\n
                 collected dummies.              Police brought witnesses.                   He<\/p>\n
    kept     them        in separate room.          He called two panchas                  for<\/p>\n
    identification               parade.     Six dummies were asked to                  stand<\/p>\n
    in     a row.        Police brought Manik Mohan Gaikwad accused by<\/p>\n
    concealing his face by Burkha.                   He asked him his name and<\/p>\n
    informed          him     about identification parade.                   He     further<\/p>\n
    deposed       that he asked accused to select his place in the<\/p>\n
    row     of        dummies       and change his        clothes.           The     accused<\/p>\n
    refused       to change his clothes.              Accused preferred serial<\/p>\n
    No.4     in the row of dummies and accordingly stood in                                the<\/p>\n
    row.         He     further       deposed      that    thereafter          he       called<\/p>\n
    witness       Deepali Jalindar in his cabin.                    He asked Deepali<\/p>\n
    to     identify the accused by touching his person from                                the<\/p>\n
    row.         Deepali          observed all the persons             and     identified<\/p>\n
    accused       Manik within two minutes.                Deepali was then sent<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                       (-58-)<\/p>\n
    to another room.           Then he asked accused Manik that he can<\/p>\n
    change     his place in the row and dress.                 Accused did            not<\/p>\n
    change     his        dress but he changed his place and stood                      at<\/p>\n
    serial     No.7.         Then he called witness          Jalindar          Narayan<\/p>\n
    Shirsath.         He asked him to identify the accused from the<\/p>\n
    row.      Witness        Jalindar    identified         accused         Manik       by<\/p>\n
    touching his person from the row.                 Detailed panchanama of<\/p>\n
    identification           parade was drawn, in presence of panchas.\n<\/p>\n
    He     put his signature and also obtained signature of                           the<\/p>\n
    panchas on panchanama.             The panchanama shown to him which<\/p>\n
    bear     his     signature and signatures of the panchas.                         The<\/p>\n
    contents therein are true and correct.                   The panchanama is<\/p>\n
    at     Exh.59.        Memorandum chart of identification parade of<\/p>\n
    witness        Deepali     is at Exh.60.     The memorandum chart                   of<\/p>\n
    witness        Jalindar of identification parade is at                     Exh.61.\n<\/p>\n
    In all 12 persons were present for holding identification<\/p>\n
    parade.\n<\/p>\n
    .    He further deposed that on 13.4.2005 he again received<\/p>\n
    letter         from      police      station        for        holding          test<\/p>\n
    identification           parade, of accused Bhausaheb.                The office<\/p>\n
    copy     of     that letter was shown to him is the                   same.         It<\/p>\n
    bears     endorsement of their clerk.             It is at Exh.62.                  He<\/p>\n
    immediately        informed       orally   that     test       identification<\/p>\n
    parade         will      be   held   on    17.4.2005.            He      arranged<\/p>\n
    identification parade in his cabin.                 He collected dummies<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                          (-59-)<\/p>\n
    who    are      appearing           similar     to     that     of     accused.           He<\/p>\n
    collected          dummies      as per the description given                     in     the<\/p>\n
    letter.         He collected 6 dummies.                 He also collected               two<\/p>\n
    panchas.           Police brought accused Bhausaheb Mohan Mali by<\/p>\n
    concealing           his     face by “Burkha” in his cabin.                      Accused<\/p>\n
    did    not change his dress.                  He informed accused that                  his<\/p>\n
    identification              parade    was      going     to     be     held         there.\n<\/p>\n
    Accused        had        chosen serial No.3 in row.                 The      witnesses<\/p>\n
    were     kept        in     separate room.           First he        called      witness<\/p>\n
    Jalinder.          He asked Jalinder to identify the accused from<\/p>\n
    the    standing            persons in the row.               Jalinder       identified<\/p>\n
    accused<\/p>\n
                   by touching his person.                 Then Jalindar was              sent<\/p>\n
    to another room.              He gave chance to the accused to change<\/p>\n
    his    dress         and     place in the row.           The accused           did      not<\/p>\n
    change       his      dress but he changed his place in                       the     row.\n<\/p>\n
    Accused preferred serial No.4 in the row.                            He then called<\/p>\n
    witness        Deepali        and asked her to identify                 the      accused<\/p>\n
    from     the       row.      Deepali saw all persons standing in                        the<\/p>\n
    row    and      identified           accused     at     Sr.      No.4.         He     drew<\/p>\n
    detailed           panchanama        of       identification           parade.          The<\/p>\n
    panchanama           bear     his     signature        and     signature         of     the<\/p>\n
    panchas.           Memorandum        chart also bear his signature                      and<\/p>\n
    signature          of panchas.        The contents of the panchanama of<\/p>\n
    identification              parade and chart of identification parade<\/p>\n
    are    true and correct.               Panchanama of T.I.              parade is          at<\/p>\n
    Exh.63 and chart of identification parade are at Exh.                                     64<\/p>\n
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\n                                       (-60-)<\/p>\n
    and     65.     The accused before the court is the same.                            The<\/p>\n
    chart and panchanama bear his signature and signatures of<\/p>\n
    the     panchas.        He further deposed that in all 12 persons,<\/p>\n
    as     dummies     were        present while        holding        identification<\/p>\n
    parade.\n<\/p>\n
    .     In his cross examination he denied that accused can be<\/p>\n
    seen     by     somebody        who visited the           premises       of        Tahsil<\/p>\n
    Office though police station and jail are situated in the<\/p>\n
    same     campus        of Tahsil Office.           In cors      examination            he<\/p>\n
    denied        the suggestion that he is giving false                       evidence.\n<\/p>\n
    All<\/p>\n
            suggestions put by the defence counsel are denied by<\/p>\n
    P.W.9.        There is nothing brought on record by the defence<\/p>\n
    to     disbelieve        his     evidence.          His     evidence          is     very<\/p>\n
    convincing.            He conducted the test identification parade<\/p>\n
    after         following        proper     procedure.          There           was      no<\/p>\n
    opportunity        for the witnesses to see the accused persons<\/p>\n
    before         identification           parade.        His      deposition             in<\/p>\n
    examination        in     chief        has not shattered by any               way      in<\/p>\n
    cross     examination.            He     clearly stated that             P.W.5       and<\/p>\n
    P.W.6         prosecutrix        and      father     Jalindar        respectively<\/p>\n
    identified        accused       persons in the         test        identification<\/p>\n
    parade.         Test     identification        parade        was     carried         out<\/p>\n
    properly       after following proper procedure.                     There was no<\/p>\n
    opportunity        to     witnesses to see accused persons                      before<\/p>\n
    they     were put to identification parade.                     If the evidence<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                            (-61-)<\/p>\n
    of     P.W.9       is taken into consideration there is no                              doubt<\/p>\n
    that     he        has    conducted identification                period          properly<\/p>\n
    after        following due procedure, therefore, the contention<\/p>\n
    of     the     appellants-accused that identification                             was    not<\/p>\n
    properly          carried out as per the procedure is required to<\/p>\n
    be rejected.\n<\/p>\n
    .      We     hold that there was proper identification of                                the<\/p>\n
    accused persons by the victim who was near about 12 years<\/p>\n
    old.         She     could       not       have forgotten       face         of     accused<\/p>\n
    persons        who       committed ghastly crime upon her.                         It     can<\/p>\n
    safely       be      said
\n                               ig   that identity of the accused                   is       amply<\/p>\n
    established          by        her     evidence.       Even     P.W.6         father       of<\/p>\n
    prosecutrix              has         identified    both        the          accused        in<\/p>\n
    identification            parade.           Evidence    of      P.W.9          Executive<\/p>\n
    Magistrate\/Tahsildar                  is    not   shattered            in     his       cross<\/p>\n
    examination.\n<\/p>\n
    40.      In this case Chemical Analyser report is                              material.\n<\/p>\n
    C.A.     reports are Exh.                  82 to 85.    P.W.14 was examined to<\/p>\n
    establish          that        articles were properly sealed                   and      same<\/p>\n
    were sent to chemical analyzer.                    P.W.14 in his deposition<\/p>\n
    stated       that Exh.92 on 2.9.2004 he received sealed packet<\/p>\n
    from Pathardi police station alongwith a letter addressed<\/p>\n
    to     Chemical          Analyzer,         Aurangabad and         he        handed       over<\/p>\n
    letter Exh.75 and obtained receipt from C.A.                                office.\n<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span><\/p>\n
                                            (-62-)<\/p>\n
    .      Evidence           of     P.W.8    Dr.        Manisha     and      P.W.10        Dr.<\/p>\n
    Suchitra        prove           that    they collected        usual       samples         as<\/p>\n
    required        to        be     taken.       C.A.   report Exh 82 to            85     are<\/p>\n
    received        by P.W.11.             C.A.    report Exh.82 is given                 about<\/p>\n
    Muddemal        articles          which       are 13 in numbers.              They      are<\/p>\n
    sweater, nicker, pieces of glass bangles, torn skirt, cut<\/p>\n
    ladies       shirt, jangya, full pant.<\/p>\n
\n\n\n\n    .      All     these articles are having blood stains.                           Out      of\n\n\n\n\n                                                  \n    them     Exh.         4,5,        6 and 8 i.e.        torn skirt,         cut      ladies\n\n    shirt,       jangya\n                               \n                                and stones are stained with                 blood         group\n\n    \"A\".         \"A'     blood group is of prosecutrix.                    Exh.84,         full\n                              \n    pant     of        accused Manik Mohan was having blood stains                            of\n\n    blood     group           \"A'     which is blood group           of     prosecutrix,\n\n    while blood group of accused Manik was \"B\".                             Thus, on the\n      \n\n\n    pant     of        accused        Manik Mohan blood stains of                 blood       of\n   \n\n\n\n    prosecutrix           were found.          This is also clinching piece of\n\n    evidence        against accused Manik.                There is no explanation\n\n\n\n\n\n    offered       by accused Manik Mohan how these blood stains of\n\n<\/pre>\n
    “A” blood group were found on his pant.\n<\/p>\n
    41.      Another           accused Bhausaheb Mohan             was      specifically<\/p>\n
    identified           by        prosecutrix and P.W.6 Jalindar.                   It     has<\/p>\n
    further       came         in the evidence of P.W.11 that clothes                         of<\/p>\n
    accused       Bhausaheb were seized during search of his house<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                          (-63-)<\/p>\n
    under     panchanama Exh.32.                P.W.3 was witness to the                said<\/p>\n
    panchanama.            Blood        stained pant and shirt            were       seized<\/p>\n
    from     the     house of accused Bhausaheb.                 C.A.         report        at<\/p>\n
    Exh.82 shows that full pant wrapped in paper labelled E\/2<\/p>\n
    which     was recovered from the house of accused                           Bhausaheb<\/p>\n
    was     sent     to     Chemical           Analyser.    Chemical          Analyser’s<\/p>\n
    report     shows        that Exh.13 has few blood                stains        ranging<\/p>\n
    from 0.1 cm x 2.00 cm.                 diameters of both pockets.<\/p>\n
\n\n\n\n    42.      The     contention of the advocate for the                       appellants\n\n\n\n\n                                                \n    that     in     respect of C.A.              report no question was put                 to\n\n    accused        persons,\n                             ig    is     required to      be    rejected          because\n\n    question        No.      63     was put to accused           No.1       Manik       that\n                           \n    P.W.11     Pandharinath             further deposed that             Muddemal         was\n\n    sent     to Chemical analyser's report.                   C.A.       report are at\n\n    Exh.      82 to 85, what you have to say?                    So far as accused\n      \n\n\n    No.2     Bhausaheb is concerned, question No.                        57 was put to\n   \n\n\n\n    him     while     recording his statement under Section 313                             of\n\n    Cr.P.C.         that P.W.11 further deposed that the clothes of\n\n\n\n\n\n<\/pre>\n
    Bhausaheb were also seized during panchanama Exh.33, what<\/p>\n
    you have to say?\n<\/p>\n
    43.      The defence of accused No.2 Bhausaheb under 313 was<\/p>\n
    that     there        is enmity between him and accused                     No.1      and<\/p>\n
    therefore,        accused           No.1    falsely involved          him      in     the<\/p>\n
    present        case.     Learned Sessions Court has recorded                        that<\/p>\n
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\n                                         (-64-)<\/p>\n
    both     accused have engaged same lawyer and that itself is<\/p>\n
    indicative          that     such defence of the accused               No.2        that<\/p>\n
    there        was enmity between accused Nos.              1 and 2         required<\/p>\n
    to be rejected.\n<\/p>\n
    44.      The       prosecution has established that                the      accused<\/p>\n
    persons       took        the prosecutrix from her          house.          Accused<\/p>\n
    persons were seen by the prosecutrix in bulb light.                              When<\/p>\n
    the     incident took place at that time the prosecutrix was<\/p>\n
    minor.       Accused persons first assaulted the father of the<\/p>\n
    victim.         She was taken forcibly without her consent                         and<\/p>\n
    therefore,          the<\/p>\n
                                Sessions    Court has      rightly         held        that<\/p>\n
    offence       of        kidnapping of lawful guardianship has                   taken<\/p>\n
    place        which is punishable under section 363 r.w.                       34     of<\/p>\n
    I.P.C.\n<\/p>\n
    .      Accused persons not only kidnapped the minor girl but<\/p>\n
    subjected          to     forcible     sexual intercourse          and      further<\/p>\n
    committed          offence     punishable under Section 376(g)                   r.w.\n<\/p>\n
    34 of I.P.C.\n<\/p>\n
    45.      P.W.6 father of the prosecutrix was also                        assaulted<\/p>\n
    by     the     accused       persons.        P.W.8 Dr.      Manisha         in      her<\/p>\n
    evidence       has        deposed    about     medical      examination              of<\/p>\n
    Jalindar.           Medical certificate at Exh.54 is duly                     proved<\/p>\n
    by the prosecution.            Thus, offence of voluntarily causing<\/p>\n
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\n                                         (-65-)<\/p>\n
    hurt     is proved against both the accused.                          In the present<\/p>\n
    case F.I.R.          is promptly lodged.             Medical examination was<\/p>\n
    also     conducted         immediately        with     few        hours         from     the<\/p>\n
    incident.\n<\/p>\n
    46.      In rape cases mere statement of prosecutrix, if                                   it<\/p>\n
    is     100%     trustworthy,          is      sufficient          to     convict         the<\/p>\n
    accused.            In the case in hand, accused persons committed<\/p>\n
    gang     rape on minor girl below 12 years of age in ghastly<\/p>\n
    manner.        P.W.5 prosecutrix in her deposition narrated the<\/p>\n
    incident        in     detail.       She has given description                    of     the<\/p>\n
    accused        persons
\n                             ig  in     detail.     She has         also       given        role<\/p>\n
    played        by each of the accused while taking her out                              from<\/p>\n
    house.         She     has    clearly stated that she saw                       both     the<\/p>\n
    accused        persons       in     the     light    of      bulb.         The      entire<\/p>\n
    incident        is     unforgettable         for     the       prosecutrix.              Her<\/p>\n
    statement in examination in chief is not shattered in any<\/p>\n
    way     in cross.          According to us, said statement is                          fully<\/p>\n
    trustworthy.           Her        version     is corroborated              by     medical<\/p>\n
    evidence        in     material particulars by way of evidence                             of<\/p>\n
    P.W.8     Dr.         Manisha.       Evidence of       P.W.11           Investigation<\/p>\n
    Officer is also convincing.\n<\/p>\n
    .      Identification of the accused in test                          identification<\/p>\n
    parade        has     been proved through evidence of P.W.9.                             The<\/p>\n
    prosecutrix          has     identified both the accused persons                           in<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                      (-66-)<\/p>\n
    identification          parade.        As we have already discussed                         in<\/p>\n
    earlier     paragraph       that test identification parade                             does<\/p>\n
    not     constitute       substantive evidence and                      identification<\/p>\n
    can     only be used as corroborative of statement in Court.\n<\/p>\n
    The     main object of holding identification parade                                 during<\/p>\n
    investigation          stage is to test memory of witnesses based<\/p>\n
    upon     first impression and also to enable prosecution                                    to<\/p>\n
    decide     whether all or any of them could be cited as                                   eye<\/p>\n
    witnesses of crime.             Test identification parade should be<\/p>\n
    conducted        as soon as possible after arrest of accused to<\/p>\n
    eliminate possibility of accused being shown to witnesses<\/p>\n
    prior      to<\/p>\n
                       parade.        The            purpose      of       holding          test<\/p>\n
    identification           parade        is     to     test          and        strengthen<\/p>\n
    trustworthiness of the evidence.                     It is considered a safe<\/p>\n
    rule     of prudence to generally look for corroboration                                    of<\/p>\n
    sworn      testimony        of         witnesses              in       Court.           Test<\/p>\n
    identification          parade belongs to stage of                       investigation<\/p>\n
    there      is     no    provision           in     Cr.P.C.           which         obliges<\/p>\n
    investigating          agency     to        hold or confers a               right       upon<\/p>\n
    accused to claim test identification parade.\n<\/p>\n
    .     Test identification parade are essentially governed by<\/p>\n
    Section     162     of Cr.P.C.          Failure to hold same would                        not<\/p>\n
    make     inadmissible       evidence of identification in                            Court.\n<\/p>\n
    The     test identification parade in appropriate case,                                   may<\/p>\n
    accept     the     evidence       of         identification              even      without<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                            (-67-)<\/p>\n
    insisting on corroboration.\n<\/p>\n
    .     Therefore, we have no hesitation to hold that there is<\/p>\n
    no     provision        in       Cr.P.C.        which    obliges        investigation<\/p>\n
    agency to hold identification parade.                          On the strength of<\/p>\n
    evidence        of     P.W.11          and P.W.9 we hold          that       P.W.9       has<\/p>\n
    properly        carried          out     identification           parade        as       per<\/p>\n
    procedure.            There       is nothing brought on record                    by     the<\/p>\n
    defence        to     disbelieve          the      evidence       of     P.W.9.          His<\/p>\n
    evidence        is     not       in     any way     shattered          in     the      cross<\/p>\n
    examination.                 P.W.11         Investigating               Officer          has<\/p>\n
    categorically<\/p>\n
                           stated          about arrest of          accused         persons.\n<\/p>\n
    His     request        to     the       Magistrate        to    put         accused      for<\/p>\n
    identification,             his        letter to the executive               Magistrate<\/p>\n
    for conducting test identification parade and accordingly<\/p>\n
    test     identification parade was conducted by P.W.9.                                 What<\/p>\n
    is relevant is to conduct the identification parade after<\/p>\n
    arrest of accused as soon as it is possible.\n<\/p>\n
    47.      In     case        of    accused         No.2    he    was         arrested       on<\/p>\n
    22.3.2005.           Immediately, P.W.11 Investigating Officer has<\/p>\n
    taken     steps        to     carry out          identification          parade.           In<\/p>\n
    serious        crime        like the case in hands, offence                     of     gang<\/p>\n
    rape     is     committed by the accused persons on minor                              girl<\/p>\n
    and     when        there     is convincing evidence of                  the      medical<\/p>\n
    Officer,        Investigating Officer, Executive Magistrate and<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                        (-68-)<\/p>\n
    all     other panchas, who are witnesses to the                  panchanama.\n<\/p>\n
    We     have     no hesitation to hold that incident took                    place<\/p>\n
    and     accused        persons were involved, who first              assaulted<\/p>\n
    the     prosecutrix.           Prosecutrix saw them in the light                 of<\/p>\n
    bulb     and        thereafter she was taken out of the              house       to<\/p>\n
    forest        near     hill and rape was committed on her by                 both<\/p>\n
    the     accused persons.           Medical evidence corroborates               the<\/p>\n
    version of prosecutrix.\n<\/p>\n
    48.      There is additional link connecting accused persons<\/p>\n
    to     the     incident is that of C.A.        report       about       accused<\/p>\n
    No.1, it does indicate that blood stains were detected on<\/p>\n
    his     clothes having blood group “A” which is blood                       group<\/p>\n
    of     prosecutrix.           In   case of accused No.2        the      clothes<\/p>\n
    which        were     recovered from his house immediately                within<\/p>\n
    two     days        from    the date of incident, the         C.A.        report<\/p>\n
    indicates           that   blood stains on the pant of accused                 are<\/p>\n
    human.\n<\/p>\n
    .     In our considered view, the prosecution has proved its<\/p>\n
    case beyond reasonable doubt.\n<\/p>\n
    49.     In addition to the above evidence, evidence of P.W.6<\/p>\n
    is     also on record, who is father of prosecutrix.                        P.W.8<\/p>\n
    who     medically          examined P.W.6 and has given          certificate<\/p>\n
    that     Jalindar          sustained simple injuries.         It cannot          be<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                      (-69-)<\/p>\n
    forgotten       that     the incident took place at around                    10.30<\/p>\n
    p.m.,     F.I.R.        lodged immediately and thereafter                 medical<\/p>\n
    examination        was    carried     out     immediately.           All      these<\/p>\n
    things happened within 2\/3 hours from the incident.\n<\/p>\n
    50.     Criminal Appeal No.219 of 2006 is filed by the                           the<\/p>\n
    State     of Maharashtra for enhancement of sentence of                          the<\/p>\n
    accused persons in the said case.               The Sessions Court has<\/p>\n
    convicted       the      accused    persons     under     Section          235     of<\/p>\n
    Cr.P.C.        for the offence punishable under Section 376 (g)<\/p>\n
    of the I.P.C.\n<\/p>\n
                            and they were directed to suffer R.I.                    for<\/p>\n
    10 years and to pay fine of Rs.500\/- each.                      They are also<\/p>\n
    convicted         and     sentenced     for     offences        under         other<\/p>\n
    Sections.       However, the trial court has directed that all<\/p>\n
    substantive sentences to run concurrently.\n<\/p>\n
    51.     Learned         A.P.P.     has submitted        that     the       offence<\/p>\n
    committed       by accused persons is very serious.                    They have<\/p>\n
    committed       the same in ghastly manner.             A minor girl             was<\/p>\n
    raped     by     the accused persons.          Therefore,        taking        into<\/p>\n
    consideration the entire evidence which is brought by the<\/p>\n
    prosecution        on    record,      the trial court ought             to       have<\/p>\n
    awarded maximum sentence to the accused.\n<\/p>\n
    52.     The      trail court has considered the seriousness                        of<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>
\n                                       (-70-)<\/p>\n
    crime     and        considering that the parents of accused                      No.1<\/p>\n
    are     old        one,    his   father     is   handicapped.            Similarly<\/p>\n
    parents        of     accused No.2 are also old aged, he                  is      also<\/p>\n
    having        large       family like that of accused No.1, came                     to<\/p>\n
    the     correct          conclusion   and     passed     appropriate            order<\/p>\n
    convicting          the     accused   persons.     In our         opinion,         the<\/p>\n
    trial court has properly considered this aspect and we do<\/p>\n
    not see any reason to enhance the sentence awarded by the<\/p>\n
    trial court.<\/p>\n
\n\n\n\n\n                                             \n    53.      In        the     result, the impugned        judgment         and     order\n\n    passed        by     the\n                               \n                                III Ad-hoc      Additional      Sessions           Judge,\n\n    Ahmednagar          dated 3.12.2005 in Sessions Case No.                    202      of\n                              \n    2004     is        confirmed.    Criminal Appeal Nos.             219     of      2006\n\n<\/pre>\n
    filed by the State of Maharashtra and Criminal Appeal No.<\/p>\n
    44 of 2007 filed by the accused persons are dismissed.\n<\/p>\n
    54.      Certified copy of this judgment be furnished to the<\/p>\n
    accused persons through concerned prison authorities free<\/p>\n
    of costs.\n<\/p>\n
                                          *****<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:05:50 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court High Court Bench At Aurangabad vs Manik Mohan Gaikwad on 26 November, 2008 Bench: N.V. Dabholkar, S. S. Shinde (-1-) 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-121259","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nHigh Court Bench At Aurangabad vs Manik Mohan Gaikwad on 26 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/high-court-bench-at-aurangabad-vs-manik-mohan-gaikwad-on-26-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"High Court Bench At Aurangabad vs Manik Mohan Gaikwad on 26 November, 2008 - 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