High Court
Facts
CriAppeal-644-2018+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 644 OF 2018WITHCRIMINAL APPLICATION NO. 1634 OF 2023IN CRIMINAL APPEAL NO. 644 OF 2018Rupchand s/o Tekchand TirchheAge: 32, Occ : Labour,R/o. Tisgaon, Aurangabad.… Appellantversus1.The State of Maharashtra2.XYZ… RespondentsWITHCRIMINAL APPEAL NO. 619 OF 2018WITHCRIMINAL APPLICATION NO. 1635 OF 2023IN CRIMINAL APPEAL NO. 619 OF 2018Machindra Gulab GaikwadAge 27 years, Occ : Labour,R/o. Tisgaon, Taluka and District Aurangabad.… Appellantversus1.The State of Maharashtra2.XYZ… Respondents…..Mr. Shaikh Kayyum Najir, Advocate for the Appellant in CriminalAppeal No. 644 of 2018Mr. M. P. Bhaskar, Advocate h/f Mr. Ravindra B. Wankhede, Advocatefor the Appellant in Criminal Appeal No. 619 of 2018Mr. N. D. Batule, APP for Respondent No.1-State in both appeals.Mr. Ujwal S. Patil, Advocate for Respondent No.2 in both appeals...... CriAppeal-644-2018+-2- CORAM :ABHAY S. WAGHWASE, J. Reserved on: 16.01.2024Pronounced on: 23.01.2024JUDGMENT : 1.Vide both above appeals, convicts i.e. accused no.1 Rupchandand accused no.3 Machindra are taking exception to the judgmentand order passed by learned Additional Sessions Judge, Aurangabaddated 17.07.2018 in Special POCSO Case No. 119 of 2015 therebyquestioning its legality and maintainability. PROSECUTION CASE IN BRIEF2.Chawani Police Station registered crime and chargesheetedaccused Rupchand, Baban (since deceased), Machindra and ShaikhSattar for offence punishable under Sections 376-D, 323, 504, 506,394, 201 r/w 34 of the Indian Penal Code [IPC] and Section 4 of theProtection of Children from Sexual Offences Act, 2012 [POCSO Act]alleging that on 21.09.2015 when victim PW1 was having talks withher friend PW6 on Tisgaon road, around 6.30 to 6.45 p.m., accusedpersons approached them. One of them caught hold of victim anddragged her and remaining two started beating PW6. Accused no.1raped victim during which she raised shouts which invited attentionof a passer by. So all accused persons took to heels. Victim and her
Legal Reasoning
CriAppeal-644-2018+-15- “17. In Malkhan Singh Vs. State of M.P. AIR 2003 SC2669, this Court has observed as under:“It is well settled that the substantive evidence is theevidence of identification in court and the testidentification parade provides corroboration to theidentification of the witness in court, if required.However, what weight must be attached to theevidence of identification in court, which is notpreceded by a test identification parade, is a matterfor the courts of fact to examine.”18. In Mulla & Anr. Vs. State of Uttar Pradesh (2010) 3SCC 508, this court (one of us, Hon’ble P. Sathasivam, J.)placed reliance on Matru @ Girish Chandra Vs. The Stateof Uttar Pradesh AIR 1971 SC 1050; and Santokh SinghVs. Izhar Hussain & Anr. AIR 1973 SC 2190, wherein ithad been held that the Tests Identification Parades do notconstitute substantive evidence. They are primarily meantfor the purpose of providing the investigating agency withan assurance that their progress with the investigationinto the offence is proceeding on right lines. The TestIdentification Parade can only be used as corroboration ofthe statement in Court. The necessity for holding the TestIdentification Parade can arise only when the accusedpersons are not previously known to the witnesses. Thetest is done to check the veracity of the witnesses. Thecourt further observed as under :-“The evidence of test identification is admissibleunder Section 9 of the Indian Evidence Act. The CriAppeal-644-2018+-16- Identification parade belongs to the stage ofinvestigation by the police. The question whether awitness has or has not identified the accused duringthe investigation is not one which is in itselfrelevant at the trial. The actual evidence regardingidentification is that which is given by witnesses inCourt. There is no provision in the Cr.P.C. entitlingthe accused to demand that an identification paradeshould be held at or before the inquiry of the trial.The fact that a particular witness has been able toidentify the accused at an identification parade isonly a circumstance corroborative of theidentification in Court.”19. Thus, it is evident from the above, that the TestIdentification is a part of the investigation and is veryuseful in a case where the accused are not known beforehand to the witnesses. It is used only to corroborate theevidence recorded in the court. Therefore, it is notsubstantive evidence. The actual evidence is what is givenby the witnesses in the court.”18.Prosecution has also adduced evidence of pancha witness PW4Ganesh who claims that in his presence memorandum was given bydeceased accused Baban and in pursuance to the memorandum,seizure of wallet, aadhar card of PW6 and money was caused andtherefore it is also a value addition. Nothing doubtful has beenbrought in cross of this pancha witness. CriAppeal-644-2018+-17- 19.Therefore, in the totality of above discussed oral anddocumentary evidence, in the considered opinion of this court,prosecution has established beyond reasonable doubt that on the dayof occurrence, victim was below 18 years of age. While she was in thecompany of PW6, accused approached them. Medical evidencecorroborates testimony of victim regarding the offence of rape. On thestrength of evidence of all ten witnesses, charges can be said to beproved.20.Perused the rulings relied. Facts in the case in hand and inthose cases are distinct and therefore, same cannot be taken aid of bythe appellants.21.I have gone through the impugned judgment. Learned trialJudge has correctly appreciated the evidence adduced by prosecution.Required law has been applied and only on satisfaction about casebeing made out, charges are held to be proved. Nothing has beenbrought to the notice of this court during appeal about any perversityor failure to appreciate the evidence. Resultantly, there being nomerits, I proceed to pass the following order:
Arguments
CriAppeal-644-2018+-3- friend approached police and lodged report on the strength of whichcrime bearing no. I 307/2015 was registered and investigated and allfour accused were duly chargesheeted. 3.During trial before learned Additional Sessions Judge,prosecution adduced evidence of in all 10 witnesses and also adduceddocumentary evidence various panchanamas, reports etc. Afterappreciating the evidence on record, learned trial Judge convictedpresent appellants and hence the appeals assailing above judgmentand findings reached at by learned trial Judge.SUBMISSIONS4.Learned counsel Mr. Shaikh Kayyum Najir, Advocate for theAppellant in Criminal Appeal No. 644 of 2018 would submit thatimplication is false. That, victim was caught red handed havingbecome intimate with her friend PW6 and therefore, to savethemselves, there is false implication by leveling false allegations. Hefurther submitted that behaviour of victim herself was doubtful. That,even otherwise prosecution evidence, more particularly answers givenby prosecution witnesses in cross, renders case of prosecutiondoubtful. He submitted that considering the very evidence of victim,she can be said to be consenting party. According to him, there were CriAppeal-644-2018+-4- no injuries or marks of forceful sexual assault. That, accused werestrangers and victim could not identify them beyond reasonabledoubt. Even age of victim has not been proved by prosecution and forall above counts, he submits that, the findings and conclusion reachedat by learned trial Judge is either in absence of cogent and reliableevidence or based on assumptions and presumptions. That, in factprosecution has not proved charges beyond reasonable doubt. Learned counsel has placed reliance on Vilas Namdeo Roundalv. The State of Maharashtra 2015 All MR (Cri) 1596; Lalliram andanother v. State of Madhya Pradesh (2008) 10 SCC 69; State ofMaharashtra v. Mahadu Dagdu Shinde 2021 SCC OnLine Bom 336;Anish Rai s/o Sunil Rai v. State of Sikkim 2018 SCC OnLine Sikk 141;Smt. Firoja @ Puja Maihjur Shaikh v. The State of Maharashtra (withconnected appeal) 2017 SCC OnLine Bom 9084; State of MadhyaPradesh v. Muna @ Shambhoo Nath 2015 DGLS (SC) 917; RajakMohammad v. State of Himachal Pradesh (2018) 9 SCC 248 andSurjan and others v. State of M.P. (2002) 10 SCC 214.5.Learned counsel Mr. M. P. Bhaskar appearing for the Appellantin Criminal Appeal No. 619 of 2018 at the outset submits that hisclient was not properly represented by any legal professional in the CriAppeal-644-2018+-5- trial court. Therefore there was no proper defence. According to him,victim was already having affair with her friend. That, they werespotted together and therefore false case of rape has been set up.Even according to him, neither age nor occurrence of rape is provedand corroborated. Therefore, according to him also, there is noappreciation of evidence and therefore findings reached at by learnedtrial Judge cannot be allowed to be sustained. 6.Learned APP pointed out that prosecution had establishedvictim to be minor. That, while she was with PW6 i.e. her friend,accused had together approached them and accused no.1 rapedvictim while rest of the accused beat PW6. Both, PW1 and PW6, havestuck to their version and their testimony has remained unshakenduring cross. Medical evidence confirms occurrence of rape as well asminority of the victim. Even other charges are proved by prosecutionby adducing evidence of independent witnesses and panchas, whosetestimony is also reliable and trustworthy. That, therefore allnecessary ingredients for attracting the charges being available,learned trial Judge has rightly recorded the guilt and convicted theaccused and that there is no merit in the appeals and so he prays todismiss the same. CriAppeal-644-2018+-6- EVIDENCE BEFORE THE TRIAL COURT7.After hearing submissions of both sides and on appreciation ofevidence adduced in the trial court, it seems that case of prosecutionis rested on the testimony of in all 10 witnesses and their status is anunder:PW1VictimPW2 Milind is pancha to spot panchanama and seizure of articlesvide Exhibit 34. This witness is also examined as PW5 atExhibit 48 where he deposed about acting as pancha toseizure of clothes of victim and PW6 vide panchanamaExhibits 49 and 50 respectively.PW3Kunalsingh is pancha to seizure of clothes of all accusedvide Exhibits 40 to 43.PW4Ganesh is pancha to memorandum of disclosure Exhibit 45at the instance of deceased accused Baban and recovery ofwallet of PW6 along with articles found in it, i.e. aadharcard and passport size photographs of PW6, visiting cardsand three currency notes of Rs.100/- each, vide Exhibits 46.PW6Friend of victim.PW7Dr. Vinayak Nanekar who, on radiological test of bone ofvictim, assessed her age to be 16 to 17 years and issuedreport to that extent vide Exhibit 61. CriAppeal-644-2018+-7- PW8Dr. Sk. Mohiyoddin examined all four accused on02.10.2015.PW9Dr. Shweta Gajabhiye, Gynecologist, who examined victimon 22.09.2015 and issued report Exhibit 84.PW10PI Sable is the Investigating Officer [IO].8.Taking into account the nature of accusations, in the consideredopinion of this court, at the outset it needs to be seen whetherprosecution has established victim to be below 18 years of age. Toascertain this legal aspect, on visiting evidence of victim herself atExhibit 25, she seems to have given her age at 17 years and herparents seem to be labours. However she has not given her date ofbirth. In cross, she stated that she was born in village Bhira andshifted to village Sajapur when she was 8 to 10 years old. Resultantly,from her evidence her date of birth is not coming on record.Unfortunately her biological parents are not examined. She beingdaughter of labours, apparently she did not undertake education andtherefore there may not be record to that extent. In the judgment of Jarnail Singh v. State of haryana 2013Cri.L.J. 3976; State of Uttar Pradesh v. Chhoteylal LEX (SC) 2011 p.697 and very recent case of P Yuvaprakash v. State 2023 LiveLaw CriAppeal-644-2018+-8- (SC) 538, the Hon’ble Apex Court has reiterated the nature ofevidence that would be necessary for determination of age. Here, firsttwo contingencies spelt out in para 13 of P Yuvaprakash (supra) areadmittedly not available and therefore, under such circumstances, thiscourt can shift to the last mode of ascertainment of age i.e.ossification test. 9.Here, PW7 Dr. Vinayak Nanekar, who claims to have conductedX-ray examination and who was working in the very RadiologyDepartment, has opined that on the basis of his assessment of bone,age of victim is around 16 to 17 years. On visiting his cross, exceptsuggestion that age depends upon geographical circumstances and itdepends upon family history and body structure of their parents,there is nothing adverse as regards the ossification test is concerned.Taking the evidence of PW7 into consideration, there is no hurdle toaccept that victim was around 16 to 17 years of age and taking thesame into consideration, she can be said to be below 18 years of age.Therefore, here, prosecution has succeeded in establishing that victimwas minor at the time of occurrence. Resultantly, the first contentionof both the learned counsel that prosecution failed to establish thatvictim was a child or below 18 years of age has no merits and isrequired to be discarded forthwith. CriAppeal-644-2018+-9- OCULAR EVIDENCE [VICTIM PW1 AND HER FRIEND PW6]10.Now let us see whether there is evidence suggesting offence asalleged. Again evidence of victim PW1 and her friend PW6 is crucialand assumes significance and is therefore required to be carefullyassessed and re-examined.11.Victim who has deposed in the capacity of PW1 has given thedate of occurrence and about PW6 calling and meeting her and theyboth going on his motorcycle firstly to Sidharth garden and leavingsaid place around 6.00 p.m. and going in the vicinity of Tisgaon.According to her, around 6.15 to 6.30 p.m., three persons came, oneof them hold her by her hair whereas other two started beating PW6.She stated that the person who held her by her hair also slapped her.She gave his description to be in the age group of 30 to 35 years, fat,normal in colour, was wearing khaki colour shirt and white colourpant. According to her, he dragged her to some distance and even shetried to resist by biting on his forearm. He again assaulted her andthen he forcibly made her lie on the ground, removed her clothes andhis own clothes and raped her. She further deposed that she wascrying and shouting and at that time one person came on motorcycleand on hearing her cries the person approached them and that time, CriAppeal-644-2018+-10- she put on her clothes. That time she saw two persons who werebeating PW6 had come and alerted the accused. They all were talkingto her in Hindi but among themselves they were talking in Marathi.They fled from the spot. She further deposed that PW6 informed hisfriend as well as police on phone. Thereafter police reached the spotand took victim to police station where she lodged report Exhibit 26.In para 5 and 6 she deposed that after 7 days of the incident, she wastaken to court and her statement under Section 164 was recorded and2-3 days thereafter, she was again called at Harsool jail and there,amongst 25-26 persons who were standing in queue, she identifiedfour persons. She deposed that she could identify the person who hadcaught her by hair that day and she pointed towards accused whoturned out to be Rupchand. She also identified rest of the threeaccused in court.12.PW6 friend of victim, who is examined at Exhibit 51 alsosupported victim by stating that on 21.09.2015, he called victim andthey both met and reached Sidharth garden on his motorcycle andfrom there they started to go towards Aurangabad-Ahmednagar Roadand they stopped at a kachha road in Tisgaon Shivar. While victimwas sitting on the motorcycle and he was standing in front ofmotorcycle, at that time three persons came. One of them extorted CriAppeal-644-2018+-11- mobile from him and gave blow on his back and two of them caughthold of him, whereas one held victim by her hair and they all startedbeating them. When victim requested not to beat, she was given blowon her mouth and was dragged towards remote place. He also gavedescription of the person who dragged as he to be healthy, in the agegroup of 30 to 35 year having long mustache. He also stated that twopersons were beating him. They took out wallet and belt from him. Atthat time, he had Rs.300/-, aadhar card, passport size photograph anddocument of his vehicle. According to him, they said that they wouldcommit sexual assault on victim. He also claims to have tried toescape and after reaching main road, he claims to have informed hisfriend about the incident. He claims that he was obstructing vehicles.Four to five vehicles stopped and he narrated the incident to themand took all those persons towards the spot. When they reached thespot, they found victim lying on the ground and she was crying andshe allegedly told him that one of those persons committed forcefulact of rape on her. 13.Therefore, as regards the occurrence is concerned, both, PW1and PW6, are found to be lending support to each other and areconsistent about they meeting, going to the garden, returning towardsroad leading to Tisgaon and they being approached by three persons, CriAppeal-644-2018+-12- one of them dragging victim and other two beating PW6. Victim iscategorical about she being made to lie down and forced upon. Bothof them have given description of all three persons.MEDICAL EVIDENCE14.Evidence of PW9 at Exhibit 83, who is a gynecologist, showsthat on 22.09.20015, i.e. on the very next day, victim was producedby LPC for medical examination and this witness PW9 deposed aboutnoting history and coming across blood stains on her clothes. Shefound abrasions of 0.5 x 0.5 at 6 O’clock position over posteriorhymen. She deposed that hymen was ruptured. She opined that as perhistory given old healed hymen tear present, but further stated thatthere is possibility of penetrative and forcible intercourse. She hasidentified medical report Exhibit 84. While under cross, there are questions about not noting numberof ward and that most of the doctors refer medical jurisprudenceauthored by Parikh and Modi. She further answered and admittedthat during her examination, she did not notice abrasions on victim’sthighs and hips. She also admitted that if forceful sexual assault isdone on a victim on hard and blunt surface, then there is possibilitythat victim will have abrasions over her back, hips and thighs. CriAppeal-644-2018+-13- 15.On analysis of medical evidence discussed above, it is clear thatvictim was examined by this doctor on the very next day of theoccurrence. She has noted history. Though doctor has noticed oldhymen tear, she has come across abrasion over posterior hymen andshe gave its measurement. She has expressly answered that there ispossibility of penetrative forcible intercourse and abrasion to bepossible in case there is forcible intercourse. Even in report, she hasopined that penetrative vaginal intercourse could not be ruled out.Taking into consideration evidence of doctor and the manner of hercross, it is evident that on 21.09.2015 there was forceful sexualassault on victim. There was no reason for victim to falsely depose.Therefore, medical evidence corroborates the testimony of PW1victim.16.Though all four accused are shown to be subjected to medicalexamination, unfortunately they seem to be produced before PW8 Dr.Sk. Mohiyoddin on 02.10.2015. Therefore, doctor on examination didnot notice any kind of violence marks on their body.17.Much hue and cry is made by both learned counsel bysubmitting that accused persons were unknown to the victim as wellas PW6. They had merely given description and thereforeidentification of accused is not proved beyond reasonable doubt. CriAppeal-644-2018+-14- On minute scrutiny of evidence of PW10 IO, we find himstating in his examination-in-chief about making communication tothe Tahsildar for getting Test Identification parade conducted. VictimPW1 also in her examination-in-chief stated about participating in TIparade at Harsool Jail and identifying all accused persons standing ina queue and she has also identified accused persons in court. Nothinghas been brought during cross of any of the witnesses suggestingconfrontation of accused prior to being made to face TI parade. Evenotherwise, identification parade is mere corroborative piece ofevidence and it is the substantive evidence that would prevail. Here,victim has identified accused to be present in the court and therefore,above submissions regarding identification is rendered valueless.Moreover, in the instant case, learned trial court has marked and gotthe TI parade panchanama exhibited. No objection to that was raisedduring appeal or even before this court.Above view of this court gets fortified from the observations ofthe Hon’ble Supreme Court in a landmark case of Vijay @ Chinee v.State of Madhya Pradesh (Criminal Appeal No. 660 of 2008 decidedon 27.07.2010), wherein, in para 17 to 19, by referring the rulings ofMalkhan Singh v. State of M.P. AIR 2003 SC 2669 and Mulla & Anr.v. State of Uttar Pradesh (2010) 3 SCC 508, it is held as under:
Decision
CriAppeal-644-2018+-18- ORDERI.Both the appeals are hereby dismissed.II.The applications in both appeals do not survive and the samestand disposed of. [ABHAY S. WAGHWASE, J.]vre