Nanasaheb s/o Chatrabhuj Shinde, Age 51 years, Occu. Agriculture, R/o Sugaon, Tq. Ambajogai, District v. The State of Maharashtra
Case Details
Cri.Appeal No.492/2016 with connected Appeals :: 1 :: IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.492 OF 2016 Nanasaheb s/o Chatrabhuj Shinde, Age 51 years, Occu. Agriculture, R/o Sugaon, Tq. Ambajogai, District Beed VERSUS The State of Maharashtra, (Copy to be served on the Public Prosecutor, high Court of Bombay, Bench at Aurangabad) … APPELLANT … RESPONDENT Mr. P.P. More, Advocate for appellant Mrs. G.L. Deshpande, A.P.P. for respondent -State ....... ....… WITH CRIMINAL APPEAL NO.505 OF 2016 Angad s/o Vishnu Shinde, Age 31 years, Occu. Agriculture, R/o Sugaon, Tq. Ambajogai, District Beed VERSUS The State of Maharashtra, (Copy to be served on the Public Prosecutor, high Court of Bombay, Bench at Aurangabad) … APPELLANT … RESPONDENT Mr. S.B. Ghute Patil, Advocate for appellant Mrs. G.L. Deshpande, A.P.P. for respondent -State ....... ....… Cri.Appeal No.492/2016 with connected Appeals :: 2 :: WITH CRIMINAL APPEAL NO.509 OF 2016 Pandurang s/o Rajabhau Farkande, Age 30 years, Occu. Labourer, R/o Sugaon, Tq. Ambajogai, District Beed VERSUS The State of Maharashtra, through the Police Station Officer, Bardapur Police Station Officer, Tq. Ambajogai, District Beed (Copy to be served on the Public Prosecutor, high Court of Bombay, Bench at Aurangabad) … APPELLANT … RESPONDENT ....... Mr. Z.H. Farooqui, Advocate holding for Mr. N.V. Gaware, Advocate for appellant Mrs. G.L. Deshpande, A.P.P. for respondent -State ....… WITH CRIMINAL APPEAL NO.803 OF 2018 Mahadev s/o Topaji Bhagwat Age 41 years, Occu. Labourer R/o Sugaon, Tq. Ambajogai, District Beed VERSUS The State of Maharashtra, through Police Station Officer, Bardapur Police Station, Tal. Ambajogai, Dist. Beed ....... … APPELLANT … RESPONDENT Cri.Appeal No.492/2016 with connected Appeals :: 3 :: Mr. A.R. Gaikwad, Advocate for appellant Mrs. G.L. Deshpande, A.P.P. for respondent -State ....… CORAM : R. G. AVACHAT, J. Date of reserving judgment : 29th March, 2022 Date of pronouncing judgment : 16th September, 2022 J U D G M E N T : These appeals are directed against the judgment and order dated 14/7/2016, passed by Additional Sessions Judge, Ambajogai, District Beed in Special (POCSO) Case No.8/2015. By the impugned judgment and order, the appellants herein were convicted for the offences punishable under Section 376-D of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 20 years and to pay fine of Rs.3000/- each, in default to suffer simple imprisonment for 2 months. The appellant Mahadev in Criminal Appeal No.803/2018 is also convicted for the offences punishable under Section 342 read with Section 34 of the Indian Penal Code and Section 376(2) of the Indian Penal Code, and sentenced to suffer rigorous imprisonment for 6 months and to pay fine of Rs.500/-, in default to suffer simple imprisonment for 7 days and rigorous imprisonment for 10 years and to pay fine of Rs.3000/-, in default to suffer simple Cri.Appeal No.492/2016 with connected Appeals :: 4 :: imprisonment for 2 months, respectively. All the substantive sentences have been directed to run concurrently. 2. For the sake of convenience, the appellants herein
Legal Reasoning
(accused in the case) are referred to by their first names. 3. The prosecution case in brief is as under : Sumati (name changed, hereinafter referred to as the prosecutrix), was the resident of village Thegda Shyopur in the State of Madhya Pradesh. She has a mother and six siblings. The prosecutrix (P.W.3) along with her mother (P.W.4) Munni, brother Ramniwas (P.W.6), his wife and two other sisters had come to Maharashtra one and a half month before she lodged the First Information Report (F.I.R.) dated 18/1/2015. 15 other persons from the State of Madhya Pradesh had also accompanied the prosecutrix and her family members to Maharashtra. All of them had come for sugarcane harvesting. They came to Parali Vaijnath first and then went to Ambajogai. All of them did work of sugarcane harvesting for 2 – 3 days at Dharampuri. The appellant Mahadev (in Criminal Appeal No.803/2018) then took all of them to Hatkanangle in District Kolhapur. Mandakini Cri.Appeal No.492/2016 with connected Appeals :: 5 :: (Mahadev’s wife) and Pandurang (appellant in Criminal Appeal No.509/2016) had accompanied them to Hatkanangle. They did sugarcane harvesting for a few days there. 15 out of the 20 labourers who had come along with the prosecutrix from Madhya Pradesh for sugarcane harvesting left (fled) Maharashtra for their native for no return. As such, the prosecutrix and her family members remained in Maharashtra. Mahadev had come back home at village Sugaon. He asked his wife Mandakini and Pandurang to send the prosecutrix and her brother to the village Sugaon. Mandakini and Pandurang brought the prosecutrix and her brother Ramniwas to Sugaon. There was a two room premises. Each room had independent entrance. The prosecutrix was kept in one room. The brother in another one. On the night of 13/1/2015, appellants Angad and Nanasaheb entered the room of the prosecutrix. Both of them committed rape of her. They came out of the room. Mahadeo and Pandurang then entered her room. They too committed rape of her. The prosecutrix related the incident to her brother Ramniwas (P.W.10) the next morning. It is also the case of the prosecutrix that, Suresh, Vishal and Mandakini (convicts) beat her and her brother and asked to pay a sum of Rs.3,00,000/-. On the next evening, again both the prosecutrix and her brother were kept in those separate Cri.Appeal No.492/2016 with connected Appeals :: 6 ::
Legal Reasoning
rooms. Mahadeo entered her room by 9.00 p.m., and gave her liquor instead of water. He then committed rape of her and left. 4. It is also the case of the prosecutrix that, on the next day, Sandip Raut (P.W.10) took her and her brother to village Kaij. The other family members of the prosecutrix namely her mother, brother and sister-in-law came to Kaij. All of them came to the house of Mahadev at Sugaon on 17th. They were reluctant to come, but for Mahadev’s insistence. Mahadev, Vishal and Suresh tied Ramvilas with a rope. Mahadev threatened the prosecutrix with a revolver. Villagers gathered. They helped the prosecutrix and her family members to get rescued. The prosecutrix and her family members then approached Bardapur Police Station on the intervening night of 17th and 18th January 2015. The prosecutrix lodged the F.I.R. (Exh.83). 5. Crime vide C.R. No.6/2015 came to be registered. It was found that, the prosecutrix was below 18 years of age. Provisions of the Protection of Children from Sexual Offences (POCSO) Act came to be invoked. It was also found that the prosecutrix and her family members belong to Scheduled Cri.Appeal No.492/2016 with connected Appeals :: 7 :: Caste. Relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, therefore, came to be invoked. The appellants and co- accused came to be arrested. The prosecutrix and the appellants were medically screened. Scene of offence panchanama was drawn. Blood samples and vaginal swab of the prosecutrix were obtained for analysis. Similarly, blood samples of the appellants were also obtained. Clothes on the person of the prosecutrix and the appellants at the time of commission of the offences came to be seized. Rope, mat, revolver too came to be seized from the room in which the prosecutrix was kept. Statements of persons acquainted with the facts and circumstances of the case were recorded. On completion of the investigation, the appellants and six others came to be proceeded against. 6. The trial Court framed the charge for the offences punishable under Sections 342, 376, 376(d), 376(2) 323, 506 read with Section 34 of the Indian Penal Code, Section 3(1) (xii), 3(1)(xi), 3(2)(V) of the scheduled Castes and Scheduled tribes (Prevention of Atrocities) Act, 1989 and Section 6 of the Protection of Children from Sexual Offences Act, 2012 came to be framed. The appellants and others pleaded not guilty. Cri.Appeal No.492/2016 with connected Appeals :: 8 :: Their defence was of false implication with a reason to avoid repayment of money taken as advance. It is also the case of the appellants that, the prosecutrix and her family members wanted to go back to their native. 7. The prosecution examined 19 witnesses and produced in evidence number of documents to establish the charge. The learned Additional Sessions Judge, on appreciation of the evidence, convicted the appellants for offences punishable Section 376-D, 342, 376(2) read with Section 34 of the Indian Penal Code and sentenced them as stated hereinabove. They were acquitted of the offences punishable under the POCSO Act and Atrocities Act. The State has not preferred appeal against acquittal. Except the appellants herein, no other convict has preferred any appeal against conviction. 8. Heard learned Advocates for the appellants and the learned A.P.P. for the respondent – State. It was the submission of the learned Advocates for the appellants that, there is delay of about 5 days in lodging of the F.I.R. The medical evidence does not support the Cri.Appeal No.492/2016 with connected Appeals :: 9 :: prosecution. The prosecutrix and her family members had been paid advance for the job of sugarcane harvesting. Those others who had come along with them left. The prosecutrix and her family members also wanted to go back to their native. Mahadev had invested money in paying them advance. He was, therefore, reluctant to allow the prosecutrix and her family members to go back to their native. A false F.I.R. has been lodged only with a view that no one would prevent them to go back to their native. Learned Advocate for the appellant Angad and Nanasaheb would submit that, these two appellants were neither sugarcane harvesters nor Mukadams/ Contractors. The prosecutreix did not know them. There is no material to indicate these appellants to have had any reason to be in the company of the appellant Mahadev and other sugarcane harvesters. These appellants have been implicated only at the behest of some of the villagers. They were shown to the prosecutrix at the police station. She was also informed of their names there. Their identification in the test identification parade was, therefore, of no avail for the prosecution. The learned Advocates, therefore, urged for acquittal of the appellants. Cri.Appeal No.492/2016 with connected Appeals :: 10 :: Learned counsel for the appellant in Criminal Appeal No.509/2016 relied on the case of Santosh Prasad @ Santosh Kumar Vs. State of Bihar [2020 AIR 9SC) 985]. 9. The learned A.P.P. would, on the other hand, submit that, the prosecutrix had no reason to falsely implicate any of the appellants. C.A. reports reinforce her testimony. The learned A.P.P. took this Court through the evidence of each and every witness examined on behalf of the prosecution and ultimately submitted for dismissal of the appeals. The learned A.P.P. has relied on the following authorities : (1) (2) (3) Phool Singh Vs. State of Madhya Pradesh 2021 SCC OnLine SC 1153 Aslam Vs. State of Uttar Pradesh etc. 2014 Cri.L.J. 1576 Santosh Moolya & anr. Vs. State of Karnataka (2010) 5 SCC 445 (4) Munnawar & ors. Vs. State of Uttar Pradesh & ors. (2010) 5 SCC 451 (5) Balaji s/o Gangaram Navghare Vs. State of Maharashtra 2009 ALL MR (Cri) 69 10. Considered the submissions advanced. Perused the entire evidence. Let us appreciate the same. Cri.Appeal No.492/2016 with connected Appeals :: 11 :: The prosecutrix (P.W.3) testified that, she hailed from village Thegda Shyopur in State of M.P. She along with her mother, sister, brother and his wife, along with 15 others from the State of M.P. had come to Maharashtra for sugarcane harvesting. They first came to Parali Vaijnath. Then went to Ambajogai. They met one Navnath Dhavare. Navnath sent them to Dharampuri. All of them worked at Dharampuri for 2 – 3 days. Mahadev then took them to Hatkanangle in District Kolhapur. His wife Mandakini (convict) and Pandurang were with them. All of them did sugarcane cutting there. Except the prosecutrix and her family members, rest others, who had come from M.P., left for their native for no return (they fled). Pandurang and Mandakini brought her and her brother Ramniwas (P.W.6) to the house of Mahadev at village Sugaon. Both of them were kept in two separate rooms. Appellants Angad and Nanasaheb entered her room. It was 10.00 p.m. Both of them committed rape of her by turn. Then they left the room. Mahadev and Pandurang then came to her room. They too committed the same acts with her. She related everything to her brother Ramniwas (P.W.6) on the following morning. It is further in her evidence that, the appellants and others beat her and her brother, and demanded Rs.3 Lakhs. Cri.Appeal No.492/2016 with connected Appeals :: 12 :: It is further in her evidence that, again both of them were kept in two separate rooms. Mahadev came her room by 9.00 p.m. He gave her liquor instead of water. He then committed rape of her. 11. The prosecutrix went on to state that, Sandip Raut (P.W.10) took Ramniwas (P.W.6) and her to Kaij on the following morning. Her mother met her at Kaij. Then all of them came back to Sugaon. Mahadev, Vishal and Suresh kept her brother in separate room. They tied him with a rope. Mahadev threatened her with a revolver. Some of the villagers gathered. They assisted them to get rescued. It is further in her evidence that, she along with her family members approached Bardapur Police Station. She lodged F.I.R (Exh.83) there. She identified the appellants before the Court. It is also in her evidence that, she had identified them in a test identification parade. The articles seized from the scene of offence and her clothes were shown to her. She identified all those articles. 12. The prosecutrix was subjected to a searching cross-examination. She admitted that, Mahadev was from the gang of Dr. Balaji Karle. She then claimed ignorance thereof. Cri.Appeal No.492/2016 with connected Appeals :: 13 :: She admitted to have had worked for Dr. Balaji Karle for about 3 – 4 days. Dr. Balaji had made complaint to Sandip Raut (P.W.10) about their non working attitude. Sandip, therefore, took them for work under his control. She denied to have been paid a sum of Rs.3 Lakhs as an advance for the work of sugarcane harvesting. She also denied that they wanted to go back to their native immediately and with a view to avoid repayment of money received as advance, a false F.I.R. has been lodged. It is further in her evidence that, they worked for not more than 2–3 days at one place namely Hatkanangle, Kolhapur and Kaij. The appellant Pandurang was working as sugarcane harvester in the gang of Dr. Balaji. Pandurang continued to work for Balaji even after those 15 persons left for their native. She admitted to have given her age as 20 years while recording her F.I.R. She, however, claimed to be 15 years of age in her evidence before the Court. It is further in her evidence that, she was married with one Sumedh. She, however, did not cohabit with him since it is their custom that a newly wed bride does not stay at her marital house for one year next after the marriage. It is further in her evidence that, she had never been to the school. According to her, she did not raise cries while being sexually assaulted as her mouth was pressed. The appellants had tied her as well. She Cri.Appeal No.492/2016 with connected Appeals :: 14 :: was made to sleep on an iron cot. She was undressed. It is further in her evidence that, some of the villagers including the Village Sarpanch had gathered. She had narrated them about the incidence. She had also given them the names of Angad and Nanasaheb. She admitted that, both Angad and Nanasaheb were not sugarcane harvesting workers. They did not work with them any time. It was Mahadev who gave her their names. Some of the villagers, herself and her family members went to the Police Station. Police arrested Angad and Nanasaheb by 4.30 a.m. Police showed them to her and gave their names as well. She was medically screened on the following day. She identified the appellants in test identification parade four days after the F.I.R. was lodged. 13. Ramniwas (P.W.6), brother of the prosecutrix testified that, one Sadiq from Sheopur sent them to Maharashtra. They first met Navnath Dhavare at Parali Vaijnath. Went to Dharampuri and worked there for four days. They came back to Ambajogai. Mahadev met them. He took them to sugar factory at Hatkanangle in District Kolhapur. Mahadev himself, his wife Mandakini, Pandurang, his wife and son Vishal had all accompanied them to Kolhapur. After having worked there for 2 – 4 days, 15 others went back Cri.Appeal No.492/2016 with connected Appeals :: 15 :: to their native in M.P. His family continued to work. It is further in his evidence that, Mahadev called him and prosecutrix to Sugaon. Pandurang and Mandakini, therefore, brought them to Sugaon. He was detained in one room. The prosecutrix was kept in another room. Mahadev, Pandurang Vishal, Suresh and Mandakini assaulted them and asked to bring Rs.5 Lakhs from their village. It is further in his evidence that, on the following morning the prosecutrix informed him to have been raped by the appellants the previous night. It is further in his evidence that, Sandip Raut (P.W.10) took both of them to Kaij. They stayed there for one night and a day. All his family members came to Kaij. Sandip (P.W.10) sent all of them to Mahadev’s house at Sugaon. Mahadev, Pandurang, Vishal, and Suresh tied him and kept in one room. His family members were kept in another room. It is further in his evidence that, after a while, the villagers gathered. They rescued them. Then they went to the Police Station. The prosecutrix lodged the F.I.R. He identified the revolver/ pistol shown to her. He also identified the appellants before the Court. 14. Ramniwas (P.W.6) was subjected to a searching cross-examination. He was leader of the group of 20 persons Cri.Appeal No.492/2016 with connected Appeals :: 16 :: who had come from M.P. to Maharashtra. Sadiq had told him that they would be paid Rs.2/- per ton for sugarcane harvesting. He had received a sum of Rs.1000/- / 2000/- from Sandip as advance per person. He admitted that, the names of Angad and Nanasaheb were told to them by villagers. The prosecutrix did not disclose their names to him. He identified the appellants before the Court. 15. Munni (P.W.4), mother of the prosecutrix stated in her oral evidence that, after having worked at Dharampuri, all the 20 labourers were taken to Hatkanangle in Kolhapur district. 15 labourers ran away. Pandurang and Mandakini took prosecutrix and Ramniwas (P.W.6) to village Sugaon. Then they were taken to Kaij. She along with her other family members came to Kaij after three days. Stayed at Sandip Raut’s house. The prosecutrix told her the appellants to have committed rape of her. All of them then went to Mahadev’s house at Sugaon. Mandakini, Vishal and one another person kept them in separate room. They even beat up her son. Villagers rescued them. They then went to the Police Station. She identified the appellants before the Court. Cri.Appeal No.492/2016 with connected Appeals :: 17 :: 16. In response to the questions put to her in the cross-examination, it has come on record that, one Fayyaz Deshmukh was relative of Sadiq. Date of birth of prosecutrix has not been recorded at the office of Village Panchayat. It is further in her evidence that, they had come to Maharashtra spending their own money. They did not receive any remuneration for the work done at Dharampuri. Mahadev took them to Bidar. They worked there for 15 days. They did not receive any money for the work done at Bidar. There remained no money with them when they reached Kolhapur. Sandip Raut (P.W.10) called them to Kaij. They stayed at his residence for a day and one night. Sandip had received a phone call from Mahadev. They went to Mahadev’s residence at Sugaon at the instance of Sandip. She learnt that they were being taken there on the instructions of Dr. Balaji. It is further in her evidence that, they had decided to file a case against Mahadev after having learnt that they were being taken to his residence on the instructions of Dr. Balaji. They went to Mahadev’s residence. There was exchange of words (quarrel) between them and Mahadev. Then they decided to go to Bardapur and lodged the police report. Cri.Appeal No.492/2016 with connected Appeals :: 18 :: 17. Sandip Raut (P.W.10) stated in his evidence that, he owns a tractor. He would ply the same for transporting sugarcane to sugar factory. Labourers from village Sugaon were working on his tractor. Those labourers were provided by Mahadev. Dr. Balaji had taken those labourers. Those labourers were none other than the 20 persons including the prosecutrix who had come from M.P. to Maharashtra; and his wife took those labourers to Sugaon. He took the prosecutrix and her brother to Kaij on say of Mahadev. He promised to arrange for more labourers. It is further in his evidence that, the mother of the prosecutrix had told him not to send her to Sugaon since Mahadev, Pandurang and Mandakini were assaulting her sexually. He, therefore, contacted Mahadev to have confirmation thereof. Mahadev, in turn, denied the same. According to Mahadev, it was their false claim made only with a view to go back to their native. He, therefore, brought them to Sugaon. In his cross-examination, it has come on record that, those labourers were taken to Jaisingpur at the instance of Mahadev. He (Mahadev) was supposed to supply labourers. Cri.Appeal No.492/2016 with connected Appeals :: 19 :: 18. Mohd. Rasool (P.W.7) and Sharifkhan Pathan (P.W.8) are the residents of Sugaon. It is in their evidence that, some crowd had gathered at the house of Mahadev. Sharifkhan (P.W.8) was the President of Tantamukti Committee (Disputes Resolution Committee). He, therefore, intervened in the matter. It was the case of Mahadev that, he had invested money in engaging those sugarcane harvesters. They wanted to go back to their native. He had, therefore, reservations to allow to them to go back to their native. He wanted to get back the amount of Rs.3,00,000/- paid by him to the contractor/ Mukadam. He, therefore, wanted those labourers to work for him. It is also in their evidence that, the prosecutrix stated them that Mahadev committed rape of her. According to Mahadev, a false charge was levelled only with a view to go back to their native. 19. P.W.9 Dhammapal Jadhav testified that, there was an agreement between Navnath and Mahadev over supply of labourers. Mahadev had paid Navnath a sum of Rs.1,50,000/- therefor. An agreement to that effect was entered into on 22/12/2014. He is a witness thereto. Cri.Appeal No.492/2016 with connected Appeals :: 20 :: 20. P.W.12 Pooja is a lady Police Constable, who recorded the F.I.R. lodged by the prosecutrix. Her evidence is not referred to in extenso since neither the appellants nor the prosecution propose to rely on the same. P.W.16 Deelip Jadhav was the Police Station Officer, who registered the crime based on the F.I.R. (Exh.83). 21. P.W.13 Parling Manurkar, a Police Naik carried the muddemal articles to Forensic Science Laboratory, Aurangabad. P.W.14 Dashrath examined the appellants medically so as to ascertain their potency. It is in his evidence that, blood and semen samples of the appellants were collected for analysis. 22. P.W.17 is a panch witness to the panchanama of test identification parade conducted by P.W.18 Jyoti, Tahsildar. The panchanamas in that regard made by her find place at Exhs.136 to 146. Evidence of these two witnesses is also not referred to in extenso since the same is not much relevant for deciding the present appeal. 23. Same is the case of evidence of P.W.5 Kamalsing Gautam, Head Master of the school, who placed on record Cri.Appeal No.492/2016 with connected Appeals :: 21 :: school record of the prosecutrix. The same is also not adverted to, since the trial Court has found the prosecutrix above 18 years of age at the relevant time. It has, therefore, acquitted the appellants of the offences punishable under the Protection of Children from Sexual Offences Act. The State has not preferred appeal thereagainst. 24. P.W.15 Dr. Sheela Kamble was a Medical Officer at Swami Ramanand Teerth Rural Medical College and Hospital, Ambajogai. She medically screened the prosecutrix. The medical examination report of the prosecutrix finds place at Exh.125. It was issued on 18/1/2015. P.W.5 Dr. Sheela did not give her opinion as to whether the prosecutrix was subjected to sexual assault. She had reserved the opinion until receipt of the C.A. reports. It is necessary to advert to the medical examination report of the prosecutrix. The same is as under : Brief description of the incident : “9. History : H.N.B. herself and her elder at 2 times sexual contact done. First time sexual contact done Tuesday night with four people and IInd time next night with one people. No n/o genital organ injury. H/o assault by slapping over both cheeks. Victim is 20 years married girl. 10. General Physical Examination : Cri.Appeal No.492/2016 with connected Appeals :: 22 :: (i) Whether oriented in space & time : Victim oriented in space & time. (ii) Pulse : 80/ Min. BP : 110/70 TEMP (N) 37°C Resp. Rate : 16/ Min. Pupils : (N) (iii) Clothing : fresh torn (iv) Whether the victim has washed √ her genitalia/ mouth/ anal canal and changed her clothes or not after the incident. 11. Examination for injuries : No history of any injury 12. Local examination of genital parts : A) B) Pubic hair combing. External Genitalia Labia Majora : (i) edematous, bruises or abrasion : No. Any swelling, tears, (ii) Labia Minora : marks tear, infection :- No. Scratch, bruising, fingernail (iii) Fourchette : Bleeding, tear :- No (iv) Vulva : Any injury, bleeding, discharge :- No. (v) Perineum : No injury C) Hymen - Torn Vagina & Cervix : No history of any bleeding/ D) tear/ discharge or tenderness. Cri.Appeal No.492/2016 with connected Appeals :: 23 :: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Samples for Central/ State Forensic Science 14. Laboratory : (1) Collection of forensic samples : Blood, nail scrubbing, pubic hairs, vaginal swabs. Clothing : No evidence of change of (2) clothing. (3) Swabs and smears over clean glass slide : (a) Vagina – No evidence of spermatozoa in present smear. (15) Clinical opinion : Opinion reserved pending availability of reports of the sample sent.” 25. P.W.1 Ganikhan Pathan was a panch witness to the scene of offence panchanama (Exh.70). Articles like Katta, nylon rope, mat (Satranji), clutch-wire etc. came to be seized in his presence. P.W.2 Namdeo Shinde is a witness to the panchanama of seizure of clothes (Exhs.72 and 73) of appellants Angad and Nanasaheb. P.W.11 Sandipan Pawar is a panch witness to the seizure of clothes produced/ delivered by the appellants Mahadev and Pandurang. This witness did not stand by the prosecution. He, however, admitted his signatures on panchanamas Exhs.107 to 109. Cri.Appeal No.492/2016 with connected Appeals :: 24 :: 26. Then there are C.A. reports Exhs.167 to 172. Those have been referred to in the evidence of P.W.19 Abhay Dongare, investigating officer. The C.A. reports indicate that three semen stains were detected on carpet (Satranji), two semen stains were detected on petticoat and one semen stain was detected on Exhs.8 and 14, namely underwears. No blood or semen was detected on the clothes namely Ladies Open Shirt, blouse, Odhni and other articles. The blood group of appellant Anand is “A” while the blood group of other three appellants is “O”. The prosecutrix did not refer her petticoat in her evidence before the Court. The semen stains found were of the blood group of “O”, shared by three of the appellants before this Court. 27. Each case has to be decided on its facts and circumstances. There can be no two views over what has been observed by the Apex Court in Phool Singh’s case (supra) that once it is found that the prosecutrix is reliable and trustworthy, in that case, there can be a conviction for the offence of rape. Relying on the judgment in case of State (NCT of Delhi) Vs. Pankaj Chaudhary, (2019) 11 SCC 575, Cri.Appeal No.492/2016 with connected Appeals :: 25 :: the Hon’ble Supreme Court observed in paragraph No.22 as under : “22. In the case of Pankaj Chaudhari (supra), it is observed and held that, as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by Court merely on basis of assumptions and surmises. In paragraph 29, it is observed and held as under : “29. It is now well settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the “probabilities factor” does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming [State of Rajasthan v. N.K., (2000) 5 SCC 30]. 28. Evidence of prosecutrix, if inspires confidence in mind of the Court, requires no corroboration. [Aslam Vs. Cri.Appeal No.492/2016 with connected Appeals :: 26 :: State of U.P.] (supra). In case of Santosh Moolya (supra), it has been observed : “Conviction on sole testimony of prosecutrix - When sustainable – In a case of rape, particularly if prosecutrix is illiterate and uneducated, her statements, held, have to be accepted in toto without further corroboration – Further, in present case, cogent, reliable, convicting and trustworthy statements of prosecutrices, held, were acceptable. Appreciation of evidence – Approach – Need of considering a self-respecting woman’s state of mind, stressed. Delay in lodging FIR/ contents of FIR – Prosecutrices (Pws 1 and 2) being uneducated, poor labourers without any male members in their family to advise them and being threatened by accused – FIR being delayed by 42 days – Effect – High Court duly considering all material aspects – High Court considering corroboration by PW 14 (mother of prosecutrices) and PW 4 (owner of quarry where prosecutrices worked) regarding cause of delay – Conviction of accused under Ss. 376 and 506 Pt. II, therefore, held, justified. Injuries on prosecutrix – Doctors not finding injuries on prosecutrix due to one-and-half months delay in medical examination (duly explained) – Locating injuries of sexual assault after said delay, held, is difficult. Injuries on prosecutrix – No injuries on a married woman habituated to sex, reiterated, is not a ground to reverse conviction for rape if otherwise established.” Cri.Appeal No.492/2016 with connected Appeals :: 27 :: 29. On the other hand, in case of Santosh Prasad @ Santosh Kumar (supra), it has been observed by the Hon’ble Supreme Court that : “Conviction on the basis of statement of prosecutrix only – Validity – Held – To base conviction under Section 376 of I.P.C. only on the statement of prosecutrix, evidence of prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception be taken as gospel truth.” Relying on the decision in case of Rai Sandeep alias Deepu Vs. State (NCT of Delhi) [ (2012) 8 SCC 21, it has further been observed that : 5.4.2) In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a “sterling witness”. In paragraph 22, it is observed and held as under: “22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of Cri.Appeal No.492/2016 with connected Appeals :: 28 :: the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him.” 30. Let us analyse the evidence in the case. The appellants herein have been convicted for the offence of gang-rape, punishable under Section 376-D of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 20 years. Section 376-D provides sentence of imprisonment of not less than 20 years, but which may extend to life, which means, imprisonment for the remainder of that person’s natural life, and fine. The appellants herein have been in jail for little over seven and half years. Since the offence for Cri.Appeal No.492/2016 with connected Appeals :: 29 :: which the appellants have been convicted provides severe sentence, the evidence for the prosecution should be clinching and reliable one. While giving F.I.R., the prosecutrix gave her age as 20 years. She, however, claimed to be 15 years of age during her evidence before the Court. Admittedly, 20 persons from Madhya Pradesh had come to Maharashtra on a job for sugarcane harvesting. They worked at various places for a few days. When the prosecutrix along with her family members and others as well were taken to Kolhapur for sugarcane harvesting, 15 of them went away for their native for no return (fled). It is the consistent case of the appellant Mahadev that, he had invested an amount towards engaging those labourers for sugarcane harvesting. There is evidence to indicate that, Dr. Balaji and appellant Mahadev had engaged those labourers. There was an agreement between Mahadev and Navnath. P.W.9 Dhammapal was a witness to the said agreement. Admittedly, there were complaints about non-working attitude of the prosecutrix and her family members. The alleged offence took place first on 13/1/2015. Admittedly, appellants Angad and Nanasaheb were not doing sugarcane harvesting. There is also no material to indicate that both of them were anyway connected with Mahadev or others. Neither the prosecutrix nor her family members had, Cri.Appeal No.492/2016 with connected Appeals :: 30 :: therefore, any acquaintance with these two appellants. When the prosecutrix did not know their names, it is surprising as to how cum their names find place in the F.I.R. It is in the evidence of the prosecutrix that, the police had brought both of them to the Police Station by 4.30 in the morning. They had given her their names. She, therefore, identified both of them in the test identification parade. The factum of identification of these appellants by the prosecutrix in the test identification parade, therefore, loses its efficacy. It is also the case of the prosecutrix that, again on 14 th of January, the appellant Mahadev committed rape of her. On the next day i.e. on 15th, both the prosecutrix and her brother went to Kaij. Both of them were there until 17th of January. On 17th, her other family members joined her at Kaij. None of the appellants or other convicts were along with them from Sugaon to Kaij and back during those two days. The F.I.R. and even the evidence of the prosecutrix is silent to explain the delay in lodging of the F.I.R. P.W.10 Sandip was an independent witness. The prosecutrix or her family members could have informed him about the offences in question. The prosecutrix was admittedly a married woman. According to her, she did not stay with her husband for a single day. She tried to explain it to be a custom that newly wed bride does Cri.Appeal No.492/2016 with connected Appeals :: 31 :: not stay at her matrimonial home for one year next after the marriage. The same may or may not be correct. Be that as it may. The mother of the prosecutrix has testified that, on their coming back to Sugaon from Kaij, there was a quarrel (exchange of words) between them and Mahadev. Thereafter they decided to lodge a police report against him. As per the case of the prosecution itself, when such quarrel took place, some of the villagers including the Chairman of Tanta Mukti Committee had gathered there. P.W.6 Ramniwas and P.W.7 Mohd. Rasool had intervened in the quarrel. It is their case that, the prosecutrix told them that the appellant Mahadev committed rape of her. The prosecutrix could have very well told both of them and the villagers as well about the crime committed by rest of the appellants. She did not attribute anything against them there. While Chairman of Tanta Mukti Committee Sharifkhan Pathan (P.W.8) and even P.W.10 Sandip enquired with the appellant Mahadev regarding complaint of the prosecutrix, it was his consistent stand that, he has invested money in engaging them for sugarcane harvesting. 15 labourers had already fled. There is, therefore, reason to believe that, the prosecutrix and her family members might have desired to go back to their native. The appellant Mahadev was not allowing them to go back. The said action, Cri.Appeal No.492/2016 with connected Appeals :: 32 :: therefore, in no way be termed to be an offence of wrongful confinement and/or wrongful restraint as well. 31. The prosecutrix was not alone. Her brother was with her, although was kept in a separate room, on the next following days, he could have gone public with the alleged crimes. 32. The medical examination report of the prosecutrix does not reinforce her case of having been sexually assaulted as has been alleged by the prosecution. The result of her medical examination has been reproduced in paragraph No.24 hereinabove. The C.A. report regarding vaginal swab also runs counter to the prosecution case. In view of this Court, for the aforesaid reasons, the testimony of the prosecutrix cannot be termed to be that of sterling witness to rely on and confirm the conviction of the appellants for the offence of gang-rape. In short, the evidence does not inspire confidence in the mind of this Court. The appellants are necessarily required to be given benefit of doubt. This Court is not at one with the findings recorded by the trial Court. The appeals, therefore, succeed. Hence the order :- Cri.Appeal No.492/2016 with connected Appeals :: 33 ::
Decision
O R D E R (i) The Criminal Appeals are allowed. (ii) The order of conviction and sentence dated 14/7/2016, passed by Additional Sessions Judge, Ambajogai in Special (POCSO) Case No.8/2015) against the present appellants is set aside. (iii) The appellants Nanasaheb s/o Chatrabhuj Shinde, Angad s/o Vishnu Shinde, Pandurang s/o Rajabhau Farkande and Mahadev s/o Topaji Bhagwat are acquitted of the offence punishable under Section 376-D of the Indian Penal Code (iv) The appellant Mahadev s/o Topaji Bhagwat is acquitted of the offence punishable under Section 342 read with Section 34 of the Indian Penal Code and Section 376(2) of the Indian Penal Code. (v) The present appellants be set at liberty forthwith if not required in any other case. Fine amount, if paid, be refunded to them. fmp/- ( R. G. AVACHAT, J. )