Criminal Appeal No. 522 of 2003 · Bombaybench High Court
Case Details
2024:BHC-AUG:12624 CriAppeal-522-2003+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 522 OF 20031.Dnyanoba S/o Dattaram BabarAge 28 years, Occu. Driver,R/o Navha, Tq. Palam,District – Parbhani.2.Sk. Rasul S/o Sk. Farid,Age 32 years, Occu. Service,R/o Navha, Tq. Palam,District – Parbhani.… Appellants[Orig. Accused Nos. 3 & 4]VersusThe State of Maharashtra… Respondent…..Mr. Joydeep Chatterji, Advocate for the Appellants.Mrs. Chaitali Choudhari Kutti, APP for the Respondent-State...…WITHCRIMINAL APPEAL NO. 509 OF 20031.Keshav s/o Laxman RupnarAge – 30 years, Occu – Driver,R/o. Navha, Taluka Palam,District Parbhani.2.Sanjay s/o Motiram Fasge,Age – 30 years, Occu – Agriculturist,R/o. Kerwadi, Taluka Palam,District Parbhani.… Appellants[Orig. Accused Nos. 1 & 2]VersusThe State of MaharashtraThrough Police Station,Kandhar, District Nanded.… Respondent.
Legal Reasoning
CriAppeal-522-2003+-2- …..Mr. Vikram S. Kadam, Advocate for the Appellants.Mrs. Chaitali Choudhari Kutti, APP for the Respondent-State.….. CORAM :ABHAY S. WAGHWASE, J. Reserved on: 14.06.2024Pronounced on: 02.07.2024JUDGMENT : 1.Both above appeals are directed against common judgment andorder of conviction passed by learned 2nd Ad-hoc Additional SessionsJudge, Nanded dated 02.07.2003, thereby convicting applicants inCriminal Appeal No. 522 of 2023 i.e. original accused nos. 3 and 4 foroffence punishable under Section 366 r/w 34 of Indian Penal Code[IPC], whereas, applicants in Criminal Appeal No. 509 of 2003 i.e.original accused nos. 1 and 2 are convicted for offence under Sections376, 366 r/w 34 of IPC.PROSECUTION STORY LEADING TO TRIAL IS AS UNDER2.Mother-in-law of victims PW2 and PW3 accused both of themfor stealing and eating groundnuts and “teel” (sesame). Theirhusbands and mother-in-law scolded them. Therefore, getting upset,both PW2 and PW3 left house on 04.06.2000 under the pretext of CriAppeal-522-2003+-3- answering call of nature, but to go to their house. PW3 also carriedher son along with her. They decided to go to Kurula and afterwalking some distance, they signaled and boarded a tempo. Accusednos. 1 to 4, who were occupying the said tempo, assured to take theladies free of charge and made them sit in the cabin.3.On the way, PW4, also a passenger, alighted from the tempo atBodkha. However, accused did not halt the vehicle at Kurula and itwas rather taken ahead, in spite of PW2 and PW3 raising shouts andcries. Vehicle was further taken towards a kaccha road. There,accused Keshav took and accused Sanjay took turns in raping both,PW2 and PW3. Later on they were taken and dropped to the outskirtsof Gangakhed. 4.Meanwhile, father of PW2, learnt from husband of PW2 thatshe and PW3 have not returned home. Thereafter brother of PW3lodged missing report. During their search, PW4 informed father ofPW2 about ladies being traveling in the vehicle owned by Keshav andSanjay and therefore, he approached police on 20.06.2000 andlodged report, on the strength of which, crime was registered foroffence under Sections 363, 366 r/w 34 of IPC. CriAppeal-522-2003+-4- 5.After investigation was over and on gathering sufficientevidence, accused persons were chargesheeted and tried by 2nd AdhocAdditional Sessions Judge, Nanded, who held all four accused guiltyand sentenced them to suffer imprisonment as spelt out in theoperative part of the order.Precisely such judgment and order of conviction is now takenexception to by all four accused, by filing distinct appeals, on variousgrounds spelt out in the respective appeal memo.SUM AND SUBSTANCE OF THE EVIDENCE IN TRIAL COURT6.In order to establish its case, prosecution has examinedfollowing 12 witnesses. Their role and sum and substance of theirevidence is as under:PW1is the father of victim PW2. In his evidence at Exhibit 32, hedeposed that PW2 was married to Tejerao. When he returnedon 06.06.2000, he learnt that his daughter and her sister-in-law (PW2 and PW3) along with child of PW3, had left thehouse on the pretext of answering call of nature andthereafter, they did not return home. Thereafter brother of CriAppeal-522-2003+-5- PW3 approached police and reported the incident. Duringsearch, it was learnt from PW4 Sangram that on 04.06.2000around 7.30 p.m., two women and a boy were seen travelingin the tempo which proceeded towards village Kurula.Accordingly, on 20.06.2000, this witness approached accusedKeshav and brought him and his three associates to Kandharpolice station and lodged report Exhibit 33.PW2is one of the victims. In her evidence at Exhibit 34 she statedthat on 04.06.2000, in the evening, mother-in-law quarreledwith herself and other victim PW3, alleging that they hadconsumed groundnuts and “teel”. Husband of PW3, namely,Dnyanoba threatened to beat and husband of PW2, i.e.Tejerao also scolded her. Therefore, on the pretext ofanswering call of nature, they left house along with son ofPW3. At around 7.30 p.m., a tempo came in which accused nos. 1 to4 were traveling. They promised to take both PW2 and PW3with the child to Kurula without charging fare. Victimsboarded the tempo. When the tempo reached Bodkha, accusedpersons declared that tempo will not take passengers to villageKartala. At Bodkha, PW4 alighted the tempo. The tempo wastaken towards Kurula, but instead of stopping it there, accusedcarried the tempo ahead of village Kurula. When they tried toraise cries, they were prevented. According to her, all fouraccused were referring to each other by their names, i.e.Sanjay, Keshav, Gyanoba and Rasool. They took the tempo CriAppeal-522-2003+-6- towards Palam, District Parbhani and then it was taken furthertowards a kaccha road and was stopped there. Accused Keshavdragged PW2 out of the tempo, took her to a spot and hadforcible sexual intercourse with her after threatening to killher. Thereafter, accused Sanjay came there. Accused Keshavasked Sanjay to see her and then Sanjay also had sexualintercourse with her by threatening and brandishing knife.When she came back towards the tempo, PW3 was forciblytaken by accused Keshav to the nearby land and he hadforcible intercourse with PW3. After Keshav, accused Sanjayalso had forcible intercourse with PW3. Thereafter they weredropped at Gangakhed. She alleged that accused nos. 3 and 4assisted accused nos. 1 and 2 in committing rape on herselfand PW3. PW2 and PW3 hired a room at Parbhani and spent15 days there. Thereafter parents of PW3 came and broughtthem to their house. There statements were recorded and theywere made to identify accused in Test Identification [TI]parade. PW3another victim also reiterated as like PW2, about allegationsraised by mother-in-law and on being scolded by husbands,they left the house with the child, boarded the tempo, butwere raped by accused nos. 1 and 2 and finally, they went toParbhani and stayed there for 15 days. Her parents came andthey were brought back. There statements were recorded andthey were made to identify accused. CriAppeal-522-2003+-7- PW4Sangram Murude stated that on the day of incident, he hadbeen to Kinni and while returning, when he was at villageKartala and was waiting for a bus, he boarded a tempo andtravelled 1 km. At that time two married girls along with achild boarded the tempo. He got down at village Bodkha andthereafter took a bus to go to Kurula. He identified PW2 andPW3, who allegedly travelled with him. PW5Suryakant acted as pancha to spot panchanama Exhibit 38.PW6Hulaji is the pancha to seizure of Tempo vide Exhibit 40.PW7Bhujangrao| Both acted as pancha to spot panchanama.and | However, both did not support prosecution.PW8Bandu|PW9Dr. Rahul Yende, who examined PW2 and PW3 and issuedcertificates Exhibits 45 and 46.PW10 Dagdu acted as pancha to Test Identification Parade.PW11PSI Ashok Patil is the Investigating Officer.PW12Anusaya Giri, Tahsildar, who conducted Test Identificationparade on 03.08.2000. CriAppeal-522-2003+-8- SUBMISSIONSOn Behalf of accused nos. 1 and 2. 7.Learned counsel Mr. V. S. Kadam for accused nos. 1 and 2submitted that there is apparently false implication. There is noconvincing, reliable evidence on the point of kidnapping or offenceunder Section 366 or even under Section 376 of IPC. According tohim, at the outset the alleged occurrence has taken place on04.06.2000 and FIR is lodged on 20.06.2000 i.e. after more than 15days. That, the alleged victims, who were married women, haveallegedly travelled in the tempo of accused even after alleged forciblerape and spent almost 15 days outside, but never reported anythingto anyone. That, thus their testimonies are not worthy of credence.That, only when they were brought back, they gave false statementsand narrated a false and fabricated story. 8.Learned counsel pointed out that, accused persons were notknown to victims PW2 and PW3. They are from distinct village. TheirTest Identification [TI] parade was also conducted almost two monthsafter arrest and meanwhile, there were several occasions and CriAppeal-522-2003+-9- opportunities for victims to see accused persons. Therefore,identification has lost its significance. He further pointed out that TIparade was also conducted in the vicinity of Tahsil office which is atproximate and immediate neighbourhood of the jail. Therefore, thereis every possibility of the Investigating Officer, who took them for TIparade, confronting accused persons to victims and they being shownto victims. He further pointed out that even the authority whoconducted TI parade has deviated from the procedure and guidelineslaid down by law. Consequently, for above reasons, according to him,identification is also rendered doubtful.9.It is his further submission that medical evidence does notsuggest forceful rape. Therefore, according to him, there was noconvincing evidence about victims being taken and forcibly raped byaccused nos. 1 and 2. According to him, learned trial court has notconsidered the lapses and lacuna on the part of the investigatingmachinery and has straightway accepted the belated versions ofvictims and other witnesses. According to him, therefore, suchjudgment cannot be allowed to be sustained. CriAppeal-522-2003+-10- On behalf of accused nos. 3 and 4 :10.Learned Advocate Mr. Joydeep Chatterji, while arguing onbehalf of accused nos. 3 and 4, would submit that there is apparentlyfalse implication of his clients and in absence of any convincing,reliable or legally acceptable evidence. He also took this Courtthrough the testimony of PW2 and PW3 and would submit that bothladies have categorically stated that accused nos. 3 and 4 had left thetempo before the alleged incident and such both accused had neverreturned. They were not present when alleged act of rape wascommitted by accused nos. 1 and 2. He also pointed to the testimonyof PW4 and would strenuously submit that this witness has notmarked presence of accused nos. 3 and 4. PW2 and PW3 have notidentified them both in TI parade. He pointed out that merely theirpresence is alleged by the ladies and learned trial court has acceptedtheir version without any iota of evidence, regarding theirparticipation or involvement. Thus, it is his submission that theirimplication itself is false. 11.Learned counsel further invited attention of this Court to para15 and 19 of the judgment and would submit that trial court itselfheld that testimonies of victims PW2 and PW3 are neither whollyreliable nor wholly unreliable, and still accused nos. 3 and 4, without CriAppeal-522-2003+-11- any participation or active role, are held guilty along with mainaccused. Findings reached by learned trial court being erroneous andnot sustainable in the eyes of law, he prays to indulge by allowing theappeal.On behalf of the State :12.Per contra, learned APP would submit that it is a seriousoffence. That, accused were traveling in the same tempo in whichPW2 and PW3 travelled that day. They have categorically narratedthat accused no.1 Keshav and accused no.2 Sanjay took turns inraping both victims i.e. PW2 and PW3. Learned APP pointed out thatPW2 and PW3 have identified accused persons in the T.I. parade.That, only out of fear of family and out of societal fear and shame, theladies did not report immediately after getting down at Gangakhed.That, after they were brought home, they narrated the ordeal faced bythem. Their statements to that extent are recorded.13.Learned APP further submitted that, investigating machineryarranged TI parade wherein both accused nos. 1 and 2 arecategorically identified. According to learned APP, accused nos. 3 and4 were companions of accused nos. 1 and 2. That, ingredients of CriAppeal-522-2003+-12- Sections 363, 366 and 376 of IPC are clearly available in theprosecution evidence. Testimonies of PW2 and PW3 are lendingsupport and corroborating each other. Their testimonies haveremained unshaken and intact. Consequently, according to learnedAPP, learned trial court committed no error whatsoever in acceptingtheir version and returning guilt. She pointed out that no convincingground is made out in appeal to interfere in the impugned judgmentand hence she prays to dismiss both the appeals.ANALYSIS14.The trial court held all four appellants guilty of offence underSection 366 r/w 34 of IPC and appellants accused nos.1 and 2, i.e.Keshav and Sanjay, are also held guilty of offence under Section 376of IPC.The fundamental objection raised by both learned counselrepresenting each of the accused is that firstly, there is inordinatedelay in reporting. Secondly, accused appellants being strangers,prompt TI ought to have been conducted, but here, there is immensedelay in conducting the same, creating several opportunities ofaccused persons being confronted to victims, and lastly, there is noconvincing oral and medical evidence. CriAppeal-522-2003+-13- 15.Evidence of victims PW2 and PW3 being crucial, is only ofrelevance. On carefully analyzing the evidence of PW2 and PW3, it isemerging that they both are consistent and lending support to eachother on the point of mother-in-law and their husbands scolding themfor eating groundnuts and teel. They both are sisters-in-law of eachother. They have both left the house together. They both are speakingabout having planned to reach Kurula and therefore they boardedtempo from Kartala. 16.PW2 testified that accused persons promised to take themwithout charging fare. After the vehicle reached Bodkha, MurudeGuruji (PW4) got down from the tempo and only they both ladies,son of PW3 and accused persons remained in the tempo. It wasrushed towards Kurula, but instead of halting there, vehicle was takenahead of said village, and when they tried to raise cries, they wereprevented. This witness also deposed about accused personsaddressing each other as Sanjay, Keshav, Dnyanoba and Rasul. Thevehicle was taken on a kachha road and there, accused no.1 Keshavpulled her out of the tempo, took her to a no mans land and forciblyhad sexual intercourse with her after threatening to kill her. Thenaccused Sanjay came there and he also, on knife point, had sexualintercourse with her. She further deposed that while she was being CriAppeal-522-2003+-14- raped by Keshav, that time PW3 was raped by accused no.2 Sanjayand she learnt about it from PW3. It is her further evidence that afterreaching tempo, Keshav took PW3 to a nearby land and had forcibleintercourse with her. They were thereafter taken to a tanda andoffered food but they refused and then they were left at Gangakhed.According to her, accused Dnyanoba and Rasul helped and assistedaccused Keshav and Sanjay in committing rape on herself and PW3.She gave the number of tempo as MH 22/455. Then she deposedabout spending 15 days in a rented room at Parbhani and father ofPW3 arriving there and bringing both ladies back. After two months,they being called for TI parade and they identified accused Keshavand Sanjay amongst 11 persons. She also identified them in the courtsaying that such accused persons travelled in the tempo at the time ofincident. She further categorically stated that accused Keshav andSanjay are the two, who committed forcible sexual intercourse on herand PW3.Above witness is subjected to extensive cross on the point ofquarrel with mother-in-law and places they passed through tillreaching road. In cross, again she confirmed that they left the houseon the pretext of answering call of nature. She answered that nobodymet them on the road nor any vehicle passed by them. She answered CriAppeal-522-2003+-15- that she told accused Keshav that they had no money for the fare andfurther answered that apart from accused, there were other five to sixpassengers including Murude Guruji, and she stated that she knewhim. She answered that when vehicle reached Bodkha, except herself,PW3, her son and accused persons, rest of the passengers got down.She answered that at Bodkha accused asked herself and PW3 to sit inthe cabin. She answered that they did request accused to stop thetempo, however, according to her, accused did not stop it. Sheanswered that when they raised cries, they were threatened to bekilled by knives. She is unable to state why portion marked “A” isappearing in her statement. She is further questioned about quarrelswith her husband. She gave distance between tempo and spot ofincident i.e. rape, as 500 feet. She answered that after she was rapedand brought to the tempo by Keshav, PW3 told her that Sanjay rapedher. Again in cross she answered and stated that when accusedKeshav raped her, accused Sanjay raped PW3 and when accusedSanjay raped her, accused Keshav raped PW3 near the tempo. At thattime, accused no.3 and 4 had left the spot where the tempo wasparked. She answered that she did resist both the incidences of rapeby accused nos. 1 and 2, but she did not sustain any injury and onreaching the spot, she told PW3 that accused nos. 1 and 2 raped her.She admitted that they did not visit police station at Gangakhed. She CriAppeal-522-2003+-16- further stated that due to fear of father they did not approach policestation for giving information of the incident and they both ladiesstayed at Parbhani for 15 days. In further cross she admitted that shehad not seen accused persons prior to the incident, she denied namesof accused being given at the time of TI parade. She denied thatpolice showed accused nos. 1 and 2 immediately prior to the TIparade and also denied that they saw accused nos. 1 and 2 in Tahsilpremises. She also denied that PSI Patil said anything to them. Afteridentification by her was over, PW3 was called. She admitted thatduring their stay at Parbhani, they did not narrated the incident toany one or to the medical officer. She answered that while they wereat Parbhani, father of PW3 had learnt about the incident of rape. Sheanswered that police recorded the statement on 28.07.2000. Rest isall denial.17.On visiting testimony of PW3 at Exhibit 35, she too, like PW2,deposed about husband and mother-in-law quarreling for eatinggroundnuts and teel and alleging theft and therefore, out of angerthey leaving the house to go to their parents and halting tempo on theroad to proceed to Kurula, where sister of PW2 was residing. Even shestated that from Bodkha to Kurula only she, her son, PW2 andaccused were in the tempo. The tempo was not halted at Kurula CriAppeal-522-2003+-17- inspite of asking. Accused threatened to kill and took the vehicleahead towards Palam and further took it to a kachha road and afterparking vehicle, they were made to get down. She stated that at thattime, accused nos. 3 and 4 left the spot. She stated that accused no.1Keshav forcibly carried PW2 to a distance. The place where tempowas parked, accused Sanjay had forcible intercourse with this witnessagainst her wish and consent. It being lonely place, nobody came tohelp. After some time, Keshav and PW2 came near the spot wheretempo was parked and from PW2 she learnt that PW2 was forciblyraped by him. Thereafter accused Sanjay forcibly took PW2 to a littledistance, whereas accused Keshav raped this witness at the spotwhere tempo was parked. They were further taken to a tanda andwere offered food, which the refused, and thereafter they weredropped at the outskirts of Gangakhed and from there they went toParbhani and stayed for 15 days, where her parents came and theywere brought to Kandhar Police station. Even she deposed that shewas called for TI parade and she identified accused Keshav andSanjay who committed rape on herself and PW2Even above witness is subjected to cross, initially about journeyin the tempo and number of other passengers. Questions are putabout stay at Parbhani and she admitted that they did not narrate CriAppeal-522-2003+-18- about the incident of rape to lady relative of PW2. She answered thatwhen her father and brother came, they abused her. She answeredthat even they did not ask her anything and she too, on her own, didnot narrate the incident to them. She also answered that fromKandhar, she went to her parents’ place and PW2 went to her parents’place. In para 5 of the cross itself, she again confirmed that first,accused Sanjay raped her and Keshav did not rape her first. Sheanswered that as it was dark, she could not see accused Keshavcommitting rape on PW2.18.On re-evaluation of above evidence of both victims, in theconsidered opinion of this Court, both victims are consistent andlending support to each other on the point of they both leaving thehouse on the pretext of answering call of nature and thereafter theyboarding tempo to reach Kurula to the place of sister of PW2. Thevery testimony of PW2 in chief itself shows that both ladies wereoffered journey free of cost. PW2 has identified PW4, who got downat Bodkha. PW4 confirmed presence of PW2 and PW3 to be travelingin the tempo that day. Both are again consistent about vehicle nothalting at Bodkha and rather it being rushed ahead in spite of theircries. It is evening time and it being a rural area and witnesses havingcategorically answered in cross that they did not come across any CriAppeal-522-2003+-19- other person or vehicle on the road, their such attempt of raising crieswas futile. They both are consistent about vehicle taken towardsPalam and 500 feet away from main road to a kachha road. PW2 categorically deposed that accused Keshav first forciblypulled her down and had forcible intercourse with her at a distanceaway from the spot where the tempo was parked. When she wastaken back to tempo, then she alleged that accused Sanjay raped her.She has identified accused both, in TI parade as well as in the court. Likewise, PW3 also deposed that after PW2 was taken away byaccused Keshav, she herself was forcibly raped by accused Sanjay nearthe tempo, and after arrival of accused Keshav and PW2, Keshavraped her while Sanjay raped PW2.19.It is to be noted that both victims had left the house in anger.They deposed about being raped forcibly and dropped at Gangakhed.Under such circumstances and it being evening time, they did notreport it to anyone and rather chose to go to PW2’s sister’s place.Again out of fear and shame, they must not have informed saidrelative and further they spent 15 days at Parbhani. It is but obviousthat having left the house in anger and having met with unfortunate CriAppeal-522-2003+-20- incidence, the ladies refrained from informing anyone or approachingpolice because they had invited this situation by leaving their house. 20.Only after they were traced and brought by father of PW3, theygave statements on 28.07.2000 disclosing the act of accused Keshavand accused Sanjay. Consequently, there is delay in reporting. Thecircumstances faced by both victims and the precarious situation inwhich they had landed, resulted in delayed reporting. No doubt, thereis delay in both, lodging FIR as well as reporting the occurrence ofrape, but merely on such count, benefit would not go to the accusedagainst whom there is convincing and truthful version. There is noreason for false implication. There is no previous enmity. Even thereis no suggestion to both victims about they falsely implicating accusedfor some reason. 21.The Hon’ble Apex Court in umpteen judgments hascategorically held that in cases of such nature, there is bound to bedelay and delay, if any, if found to be supported by plausible reason,it becomes insignificant. Here, as discussed above, both ladies havesilently left the house on the pretext of answering call of nature out ofannoyance and anger for being accused of stealing and due to quarrelwith husband and mother-in-law. Having met and faced with CriAppeal-522-2003+-21- unfortunate incident in the evening, out of fear, they did not returnback or inform anybody. Therefore, in the peculiar circumstances,there is delay on their part in disclosing the incidence. 22.As regards to objection of delay of two months caused inconducting TI parade, no doubt it is lapse, but on the part of theInvestigating Officer in not getting TI arranged and conducted in spiteof accused being arrested and statements of victims being recorded.For lapse on the part of Investigating Officer, the serious occurrencewould not get eclipsed. Even otherwise, there is no time limit orprescribed period in law for conducting TI parade and this has beenclarified by the Hon’ble Apex Court in the case of Raja v. State byInspector of Police [Criminal Appeal No. 740 of 2018 with CriminalAppeal Nos. 1608-1609 of 2018 decided on 10.12.2019] wherein, ithas been observed in para no, 16 that there is no hard and fast ruleabout the period within which TIP must be held since arrest of theaccused. 23.As regards to effect of delayed TI is concerned, in abovejudgment itself, referring to the law laid down in the judgments of SkHasib v. State of Bihar (1972) 4 SCC 773, Bharat Singh v. State ofU.P. (1973) 3 SCC 896, Wakil Singh v. State of Bihar (1981) Suppl. CriAppeal-522-2003+-22- SCC 28, Soni v. State of U.P. (1982) 3 SCC 368, Pramod Mandal v.State of Bihar (2004) 13 SCC 150 and, Anil Kumar v State of U.P.(2003) 3 SCC 569, delay is held to be insignificant, more particularly,when there is no effort to cross examine Investigating Officer byposing a question and seeking explanation as to why, at earlier pointitself, since arrest of accused, no TI was conducted. Here also, onvisiting cross of Investigating officer it is noticed that there is nopointed question to Investigating Officer as to why he did not takeprompt steps in conducting TI and therefore, now it is not open forlearned counsel for accused appellants to agitate that there is delayand so it is adverse to the prosecution.24.Even otherwise, it is also settled position that TI parade falls inthe domain of investigating machinery and it is a mere corroborativepiece of evidence. What court needs and looks for is substantiveevidence and therefore, identification in the court is considered assubstantive piece of evidence. Law to this extent has been dealt invarious cases like Malkhansingh v. State of M. P. (2003) 5 SCC 746 ;Mulla v. State of U.P. (2010) 3 SCC 508 ; C. Muniappan v. State ofT.N. (2010) 9 SCC 567 ; Sheo Shankar Singh v. State of Jharkhand(2011) 3 SCC 654 and Shamlal Ghosh v. State of W.B. (2012) 7 SCC646. CriAppeal-522-2003+-23- 25.Here, both victims have categorically identified accused personsin the TI parade. They have denied that accused were confronted tothem earlier to TI parade or even in Tahsil premises. Both victimshave identified accused in the court itself i.e. accused Keshav andaccused Sanjay. 26.It is also an objection raised by learned counsel representingmain accused Keshav and Sanjay that there is no medical evidence tosupport forceful rape. There is no substance in such argument. Lawdoes not insist corroboration in cases of rape. Prosecution is notobliged to bring evidence in that regard. The sole testimony of victim,if inspires confidence, even in absence of medical evidence, is itselfsufficient to accept said version. Here, PW2 has, in cross itself,admitted that she did not suffer any injury. They both are consistentabout forcibly raped without their consent. Therefore, the curtain fallsonce victim speaks that it was against their wish. Moreover,occurrence has come to light only when victims gave statements afterthey were traced and brought by their relatives. Therefore, due tolapse of time, it is but natural that there may not be medical evidencesuggesting resistance or marks of force. Consequently, even suchobjection pales into insignificance. CriAppeal-522-2003+-24- 27.To sum up, testimonies of PW2 and PW3, who are victims ofrape, are inspiring confidence. Their testimonies to the extent offorceful rape are not rendered doubtful. They are apparentlyexploited due to the situation in which they had landed. They havenamed accused Keshav and Sanjay for forcibly raping them and havealso identified them both, in TI parade as well as in court. There is nosuggestion for namesake regarding false implication on any count. 28.However, on carefully sifting testimonies of both victims, it isevident and palpable that no role whatsoever in commission ofoffence of either 363, 366 or 376 of IPC is made out against accusednos. 3 and 4 i.e. Dnyanoba and Rasul. PW2 as well as PW3 areconsistent that after the vehicle was parked ahead of Palam, i.e.before rape, both such persons left the place and did not return.Though PW2 stated that accused nos. 3 and 4 helped and assistedaccused nos. 1 and 2, in what manner and how, has not come in herevidence. Therefore, for want of overt act attributable to them, theycannot be held guilty for any charge. Consequently, their indictmentas well as guilt recorded against them is unwarranted. CriAppeal-522-2003+-25- 29.Resultantly, there is no merit in the appeal of Keshav andSanjay bearing Criminal Appeal No. 509 of 2003 and the samedeserves to be dismissed. Whereas, appellants in Criminal Appeal No.522 of 2003 succeed and their appeal deserves to be allowed. Hence,I proceed to pass the following order :ORDERI.Criminal Appeal No. 509 of 2003 is dismissed.II.Criminal Appeal No. 522 of 2003 is allowed.III.The conviction awarded to the appellant nos. (1) Dnyanoba s/oDattaram Babar and (2) Sk. Rasul S/o Sk. Farid (in CriminalAppeal No. 522 of 2003), by learned 2nd Adhoc AdditionalSessions Judge, Nanded in Sessions Case No. 195 of 2000 underSection 366 r/w 34 of IPC on 02.07.2003 stands quashed and setaside.IV.The appellants Dnyanoba s/o Dattaram Babar and Sk. Rasul S/oSk. Farid stand acquitted of the offence punishable under Section366 r/w 34 of IPC. CriAppeal-522-2003+-26- V.The bail bonds of the appellants Dnyanoba s/o Dattaram Babarand Sk. Rasul S/o Sk. Farid stand cancelled.VI.Fine amount deposited, if any, be refunded to the appellantsDnyanoba s/o Dattaram Babar and Sk. Rasul S/o Sk. Farid afterthe statutory period. [ABHAY S. WAGHWASE, J.]30.On pronouncement of this judgment, learned counsel for theappellants in Criminal Appeal No. 509 of 2003 prays for four weekstime to surrender so as to enable them to approach the Hon’ble ApexCourt.31.Learned APP strongly opposes the same.32.Considering the above request, four weeks time is granted tosurrender for the appellants in Criminal Appeal No. 509 of 2003.[ABHAY S. WAGHWASE, J.]vre