Criminal Appeal No. 576 of 2016 · Bombaybench High Court
Case Details
2023:BHC-AUG:25215-DB CriAppeal-576-2016+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 576 OF 2016WITHCRIMINAL APPLICATION NO. 4406 OF 2022IN CRIMINAL APPEAL NO. 576 OF 2016Abhay @ Abhi @ Abhyas/o Bhaskar PoreAged : 34 years, Occ: Nil,R/o Shivajinagar, Kalyan Road,Ahmednagar.… Appellant[Orig Accused No.2]VersusThe State of Maharashtra Through the Police Station Officer,Ambhora Police Station,Dist. Beed.… RespondentWITHCRIMINAL APPEAL NO. 542 OF 2016WITHCRIMINAL APPLICATION NO. 3971 OF 2022IN CRIMINAL APPEAL NO. 542 OF 2016Deepak s/o Dattatraya Jawale,Age 36 years, Occ : NilR/o Shedi Pokhardi, Tq. and District Ahmednagar.… Appellant[Orig Accused No.1]VersusThe State of Maharashtra… Respondent CriAppeal-576-2016+-2- WITHCRIMINAL APPEAL NO. 482 OF 2023Sunil @ Gajanan Vishwambhar EkhandeAge : 44 years, Occ. Nil,R/o. Tawle Nagar, Ahmednagar.Tq. & Dist. Ahmednagar.… Applicant[Ori. Accused No.4]Versus1.The State of MaharashtraThrough : Police Station Ambhora,Tq. Ashti, Dist. Beed.2.Deepak s/o Dattatraya Jawale,Age : 43 years, Occu. : Nil,R/o. : Shedi Pokhardi,Tq. and Dist. Ahmednagar.3.Abhay @ Abhi @ AbhyaBhaskar Pore, Age : 43 years,Occu. : Nil, R/o. : Shivaji Nagar,Kalyan Road, Ahmednagar.4.Vijay s/o Sarjerao Bade,Age: 36 years, Occu. : Chinchpur Pangul,Now R/o : Wakdi, Tq. Rahata,Dist. Ahmednagar.5.Baliram s/o Arjun RalebhatAge: 44 years, Occu: Nil,R/o. Ralebhat Galli Jamkhed,tq. & Dist. : Ahmednagar.… Respondents
Legal Reasoning
CriAppeal-576-2016+-3- WITHCRIMINAL APPEAL NO. 57 OF 2019WITHCRIMINAL APPLICATION NO. 4424 OF 2022IN CRIMINAL APPEAL NO. 57 OF 2019Vijay s/o Sarjerao BadeAge: 23 years, Occ: Nil,Resident of, Chinchpur Pangul,Presently residing at Wakdi,Ta.: Rahata, Dist: Ahmednagar,Maharashtra.… Appellant[Orig. Accused No.3]VersusThe State of MaharasthraThrough, the Ambhora Police Station,Tal: Ashti, Dist: Beed.… Respondent…..Mr. Abhaykumar D. Ostwal, Advocate for appellant in CriminalAppeal No. 57 of 2019.Mr. Abhaykumar D. Ostwal, Advocate (appointed) for appellants inCriminal Appeal Nos. 542/2016, 576/2016 and 482/2023.Mrs. V. S. Choudhari, APP for Respondent-State in all appeals...... CORAM :SMT. VIBHA KANKANWADI ANDABHAY S. WAGHWASE, JJ. Reserved on: 07.11.2023Pronounced on: 04.12.2023JUDGMENT [ABHAY S. WAGHWASE, J.] : 1.By way of distinct appeals, convicts for offence under Sections392, 394, 366, 341, 354 and 376 (2)(g) r/w 34 of the Indian PenalCode [IPC] and Sections 3 (1)(ii), 3(2) of the Maharashtra control of CriAppeal-576-2016+-4- Organized Crime Act, 1999 [MCOC Act] are hereby assailingjudgment and order of conviction passed by learned Special Judge,Aurangabad dated 22.08.2016 in Special Case No. 02 of 2010.Above appeals being dealt together and heard together, aredecided by way of common judgment.PROSECUTION STORY UNFOLDED IS AS UNDER2.While PW6 Lalasaheb, in his private car/cab was returningtowards Pune after dropping passengers at Aurangabad, he was againhired by accused persons near Ahmednagar Bus Stand to go towardsPune. After travelling short distance, when PW6 Lalasaheb halted hisvehicle to purchase water bottle, accused appellants decamped withhis vehicle and so, when his chase turned out futile, he lodged report.These accused persons further intercepted PW1 informant, who wastravelling with his family and domestic help in his own vehicle afterpaying religious visit to Parali Vaijinath. After intercepting his vehicle,prosecution claims that, PW1 informant, his watchman, wife ofwatchman and informant’s son were forced to come out of the vehicleand threatened and beaten and thereafter in his own car, his wife wasabducted by two of them and after taking her to some distance, she CriAppeal-576-2016+-5- was raped and then abandoned on the road and car of PW1 was alsotaken by those two persons. Remaining two accused had driven thevehicle of PW6 Lalasaheb and they all subsequently fled. PW1 soughthelp of PW10 Shrikant who used his motorcycle to bring back PW2and thereafter, PW2, who was stripped of her clothes, borrowed sareefrom PW5 Sunita. By that time, nephew of informant PW1 passedinformation to police, who accordingly reached there and thereafterPW1 lodged FIR and PW2 gave statement of being raped. Investigating machinery swung into action and investigationrevealed complicity of appellants and they were duly arrested,interrogated and on their disclosures, recovery of vehicle andornaments etc. was caused. Detailed investigation revealed they to becommitting organized crimes and therefore, along with the penalprovisions of IPC, charge under MCOC Act was also applied and theywere duly challaned on conclusion of investigation. Their case wastried by special Judge, who on appreciating the evidence adduced byprosecution, held the case and charges proved and passed followingorder:1.Accused no.1 Deepak Dattatraya Jawale, accusedno.2 Abhaya @ Abi @ Abhay Bhaskar Pore, accused no.3Vijay Sarjerao Bade, accused no.4 Sunil @ Gajanan CriAppeal-576-2016+-6- Vishwambhar Ekhande are convicted under the provisionsof Section 235 (2) of the Cr.P.C. for the followingoffences:-A.U/sec. 392 of I.P.C., and sentenced to sufferrigorous imprisonment for 12 years and to pay fineof Rs.5000/- each i.d. suffer further R.I. for 01 year.B. U/sec. 394 of I.P.C., and sentenced to sufferrigorous life imprisonment and to pay fine ofRs.5000/- each i.d. suffer further R.I. for 01 year.C.U/sec. 366 of I.P.C., and sentenced to sufferrigorous imprisonment for 05 years and to pay fineof Rs.1000/- each i.d. suffer further R.I. for sixmonths.D.U/sec. 341 of I.P.C., and sentenced to sufferrigorous imprisonment for one month.E.U/sec. 3(1)(ii) of MCOC Act and sentencedto suffer rigorous imprisonment for seven years andto pay fine of Rs.5,00,000/- each, i.d. suffer furtherR.I. for 03 years.F.U/sec. 3(2) of MCOC Act and sentenced tosuffer rigorous imprisonment for seven years and topay fine of Rs.5,00,000/- each, I.d. suffer furtherR.I. for 03 years. CriAppeal-576-2016+-7- 2.Accused no.1 Deepak Dattatraya Jawale andaccused no.2 Abhaya @ Abi @ Abhay Bhaskar Pore areconvicted under the provisions of Section 235 (2) of theCr.P.C. for the following offences :-I.U/sec. 376(2)(g) of I.P.C., and sentenced tosuffer rigorous life imprisonment and to pay fine ofRs.10,000/- each i.d. suffer further R.I. for 01 year.II.As they are convicted and sentenced formajor offences of Section 376(2)(g) of I.P.C., noseparate punishment has been imposed for offencespunishable U/sec. 354 R/w. 34 of I.P.C.3.Accused Nos. 1 to 4 are hereby acquitted U/sec. 235(1) of the Cr.P.C., for the offence punishable U/sec. 509R/w. 34 of I.P.C. and U/sec. 3(3) of MCOC Act.4.Accused no.5 is hereby acquitted U/sec. 235(1) ofthe Cr.P.C., for the offences punishable U/sec. 216(a) ofthe I.P.C. and U/sec. 3(3) of the MCOC Act.5.Bail bonds of accused no.5 stands cancelled.6.The seized muddemal property consists of clothes ofaccused and victim, they being of no use be destroyedafter appeal period is over.7.The various cards, license and other documents, ifany, of complainant, victim, and P.W.6 Mr. Dargude CriAppeal-576-2016+-8- seized during investigation be returned to them afterappeal period is over.8.The seized ornaments and mobile hand sets ofcomplainant, and witnesses be returned to victim andKushawartabai after appeal period is over.9.Cool cab of P.W.06 and Spark Car of complainantare already returned to them.10.Seized knives and iron rods be sold as scrap and itssell proceeds be credited to State after appeal period isover. Seized amount is hereby confiscated to the State.11.All above sentences of accused nos. 1 to 4 shall runconcurrently.12.Accused nos. 1 to 4 are entitled to get benefit of setoff of period of detention already undergone by themduring investigation and pendency of trial of this case.”PROSECUTION EVIDENCE4.To establish their case, prosecution seems to have adducedevidence of as many as 34 witnesses which could be categorized asand the sum and substance of their evidence is also dealt in briefwhich is as under: CriAppeal-576-2016+-9- After taking into account story of prosecution, in our opinion,evidence of PW1 informant, PW2 informant’s wife, PW4 Kushavarti,PW5 Sunita, PW6 Lalasaheb and PW10 Shrikant is crucial. Rest of thewitnesses are medical experts, panchas, police officers. Going by the sequence of events which took place that night,evidence of PW6 Lalasaheb is required to be dealt at the threshold asaccused had first stolen his vehicle and used the same to commitfurther offences of robbing, abduction and rape.First episode of theft of Indica CarPW6Lalasaheb in his substantive evidence at Exhibit 75,narrated that he initially dropped passengers at Aurangabadand while he was returning back to Pune, he was againhired by four persons at Ahmednagar bus stand to proceedtowards Pune. He deposed that after reaching Kedgaon, hegot down to purchase water bottle. At that time, thepassengers fled with his vehicle. He reported the occurrenceto Kotwali police. He has identified all the four passengersi.e. accused for stealing his car. CriAppeal-576-2016+-10- Second episode of commission of offence u/s 395 IPC, abduction andrape of PW2PW1Informant, who is husband of PW2, a victim of rape, in hisevidence at exhibit 49, narrated about his journey to ParliVaijinath from Pune and back. According to him, while theywere returning to proceed to their place at Pune, therevehicle was intercepted by vehicle (owned by PW6Lalasaheb which was stolen by accused persons). He hasgiven details about he, his son, his watchman and wife ofwatchman being made to alight out of the vehicle, beatenand thereafter his wife abducted by two of them in his owncar. He has narrated about informing motorcyclist (PW10Shrikant) about abduction of his wife and about requestingthe motorcyclist to go in search of his wife and accordinglyPW10 gave a chase, thereafter they reaching ChichondiPhata by boarding a bus and there, said motorcyclist PW10Shrikant brought his wife back. He has narrated aboutarrival of police and further he lodging FIR. He alsodeposed about statement given by his wife regarding shebeing raped by two accused. He identified accused personsin the court as well as his complaint.PW2Victim also narrated as like her husband about leaving Puneto go to Parli Vaijinath in their vehicle and while returningtowards Pune, their vehicle being intercepted by personswho came in Indica car. Her husband, son, watchman andhis wife made to get out of the vehicle and she being takenon knife point by two persons. She has also narrated the CriAppeal-576-2016+-11- ordeal faced by her after being taken to some distance i.e.regarding both accused taking turns to force themselves onher in the moving car and then abandoning her on the wayand speeding away with their car. She also narratedregarding she being robbed of her ornaments and left inbare clothes on the road and she meeting PW10 whobrought her to Chichondi Phata. She also narrated aboutPW5 Sunita, a woman from the village, lending her a sareeto cover herself and thereafter, on arrival of police, theygoing to show the spot and after reaching Nagar, she passedinformation of being sexually assaulted and accordingly herstatement to be recorded and she to be subjected to medicalexamination. She also identified accused present in thecourt to be the perpetrators of above crime.PW4Kushavarti is the wife of watchman Dnyanoba. She too wasone of the co-passengers in the car of PW1 informant. In herevidence is at Exhibit 70, she too has deposed about theircar being intercepted by an Indica car, four personsalighting the Indica car, forcing PW1, his son, this witnessand her husband to come out of the car, giving thrashing tothem and after snatching ornaments of this witness, two ofthem abducting PW2 in their own car and remaining twofleeing from the spot in the Indica car, a motorcyclistarriving there and on being informed about incident, hegiving chase and bringing PW2 back to them at ChichondiPhata. According to this witness, at that time PW2 had puton shirt of that motorcyclist. Thereafter, she has deposedabout one lady lending a saree to PW2, police approaching CriAppeal-576-2016+-12- and taking them to Ambhora police station, PW1 and PW2showing the spot to police and thereafter police recordingstatement of this witness.This witness too, has further deposed aboutIdentification Parade at Ashti and she identified all fouraccused as well as her ornaments.PW10Shrikant Namdeo Shamgire, resident of Patoda, DistrictBeed, deposed that on 11.04.2010, while he along with aboy were proceeding towards Ahmednagar on motorcycle,he was stopped by four persons, told about abduction ofvictim by thieves and was requested to bring her to them iffound. He further deposed that while proceeding ahead,near Takli, a lady having only a towel on her person,stopped him and narrated the incident. According to thiswitness, he gave his shirt and mobile to her and she calledher relatives and got their location to be at Chichondi. Thiswitness further deposed about taking said lady to herrelatives at Chichondi, her husband giving his shirt to thelady and shirt of this witness was returned to him. He alsodeposed about his statement being recorded by police aswell as before the court.PW5Sunita w/o Dhondiram Aglave, resident of Chitondi Pati,District Ahmednagar, deposed about her house to besituated abutting the road. About the incident, she deposedthat she had been to the temple of Vithal Rukhmini forattending bhajan and while she was returning home, she CriAppeal-576-2016+-13- saw a lady wearing a towel over her person. According tothis witness, said lady demanded a sari from her and thiswitness provided the same. This witness claims to haveheard about the incident from said lady.PW3Nitin is nephew of informant. He deposed that he hadreceived phone call from informant in the midnight i.e. at1.30 a.m. on 11.04.2010 and informant had narrated thethe incident. He has deposed that he had forwarded thesaid information to police by dialing number 100.PW7Bapusaheb Kanhoji Ghemud, Branch Manager, SonaiBranch of State Bank of India, who deposed about handingover details of ATM transaction on 11.04.2010 during 2.20a.m. to 2.30 a.m, along with CCTV footage from the cameraat said ATM center.PW15Namdev Dattatraya Ralebhat, Manager of Suyog Beer Barand relative of accused no.5 Baliram, deposed about arrivalof accused persons at his hotel for meal on 10.04.2010 at5.00 to 5.30 p.m.PW25Sambhaji Bhagwan Veer, driver of a bus, a hostile witness.Medical ExpertsPW9Dr. Satish Raghunath Tamble, is the medical officer, whoexamined victim. In his evidence at Exhibit 85, he deposedthat on 12.04.2010, when he was attached to District CriAppeal-576-2016+-14- Hospital, Beed, he examined victim aged 43 years, who wasreferred by Ambhora Police Station. On examination, heclaims to have noticed abrasion on left side of neck, size3x2 cm, hymen ruptured old, tear old. He has accordinglyissued medical certificate Exhibit 86 which he identified.PW12Dr. Mrs. Sandhya Munjaji Kshirsagar, who medicallyexamined accused Deepak and Abhay and issued certificatesExhibits 96, 97 and 98, which she identified while in thewitness box. PW18Dr. Nilesh Bhagwan Pawar, who deposed about medicallyexamining accused Deepak on 11.04.2010 at 6.10 a.m.Pancha witnessesPW8Mahesh Kachru Chavan, acted a pancha to seizure ofclothes of accused persons. He identified Exhibits 160 to164.PW11Ansar Khan acted as pancha to seizure of car of Sparkcompany, along with articles found inside it, from Shirdi.PW17Vipin s/o Premchand Lodha acted as pancha tomemorandum of disclosure Exhibit 131 at the instance ofaccused Abhay and seizure panchanama of ornamentsExhibit 132 He identified said panchanamas, accused aswell as the ornaments. CriAppeal-576-2016+-15- PW19Natha Raosaheb Shelke, who acted as pancha tomemorandum of disclosure Exhibit 140 at the instance ofaccused Deepak and seizure panchanama Exhibit 141 ofwhite colour Indica Car, two knives and two iron rods.Investigating machineryPW13Arvind Shankarrao Bolange, Naib Tahsildar, who conductedidentification of ornaments. He identified Exhibits 102 and103.PW14Ramlal Mhatarba Jadhav, Thasildar, who conductedidentification parade of accused Deepak, Vijay, Abhay andSunil on 20.01.2010. He identified Exhibits 106 to 120.PW16PI Bapusaheb Shantaram Mahajan, while on patrollingduty, on receipt of information on 11.04.2010 at 1.30 a.m.,went to Chilcholi fata, met victim and her family members,brought and produce them API Rathod [PW21-IO] atAmbhora Police Station.PW20PI Suresh Khade, who showed photographs of historysheeters to informant and other witnesses, who identifiedtwo accused person from the photographs. He arrestedaccused Abhay, Deepak.PW21PI Anant Dhanaji Rathod is the first Investigating OfficerPW22PHC Bhagwat Bhanudas Waghmare CriAppeal-576-2016+-16- PW23PHC Sk. Juberoddin,are carriers.PW24API Somnath Shivaji Kohle, who carried accused Vijay andSunil for recording their statements.PW26P. S. Sinha, Special IG, Aurangabad, who accorded priorapproval for invoking provisions of MCOC Act accused.PW27Sudarshan Laxmanrao Mundhe, PI, LCB, Beed, is theInvestigating Officer.PW28Krushipal Tarachand Raghuvanshi, Additional DirectorGeneral of Police, Law and Order, Mumbai, who accordedsanction to prosecute accused under Section 23(2) of theMCOC Act on 27.07.2010.PW29Deelip Wasudeorao Deshpande, Adhoc District Judge andAdditional Sessions Judge, Osmanabad, who recordedverification statement of confessions given by accusedpersons.PW30Dattatraya Yadav Mandlik, SP, Osmanabad, who recordedconfessional Statement of accused Deepak and Abhay.PW31Arving Harischandra Chavriya, Additional SP, Aurangabad,who recorded confessional statement of accused Baliram. CriAppeal-576-2016+-17- PW32PI Sikandar Khan took accused Deepak and Abhay fromShivaji Nagar Police Station to Beed to Osmanabad SPoffice for recording their statements.PW33Additional SP Sanjay Bhaskar Darade recorded confessionalstatements of accused Vijay Bade and Sunil Ekhande.PW34SDPO Sambhaji Sudamrao Kadam is the InvestigatingOfficer5.While exercising jurisdiction under Section 374 of the Code ofCriminal Procedure [Cr.P.C.] and this being first appellate court, weundertook the exercise of re-appreciating and re-analyzing the entireevidence adduced by the prosecution in the trial court.ANALYSIS OF FIRST AND SECOND EPISODE6.On carefully sifting above evidence, it transpires that accusedpersons first robbed PW6 Lalasaheb of his vehicle and used it tocommit second offence. Evidence of PW6 Lalasaheb has remainedintact in spite of being cross-examined at length. His testimony abouthis vehicle being hired and it being forcibly taken away when he gotdown to purchase water bottle, has not been rendered doubtful. Thiswitness was called to participate in TI parade and he has identified CriAppeal-576-2016+-18- accused persons. He is an independent witness and also in a way avictim of offence of theft of his vehicle. There is no reason for falseimplication. For all above reasons, first episode of stealing Indica caris cogently brought on record through evidence of PW6 Lalasahebwhose vehicle has been traced and recovered at the instance ofaccused persons itself.7.So far as second occurrence is concerned, evidence of PW1informant, PW2 informant’s wife, PW4 Kushavarti, PW5 Sunita andPW10 Shrikant is of vital importance and we have already dealt anddiscussed their testimonies in the witness box. All these witnesses aresubjected to extensive searching cross. However, what is noticed isthat they all withstood the lengthy cross and actual occurrence ofinterception, beating to PW1 and his son, forcibly making PW4 andher husband to step out of the car and taking away PW2 forcibly onknife point has also remained intact. In fact, the manner of crossclearly suggests that there is no serious dispute about the actualoccurrence. PW1 and PW2 are unanimous about their Indica carbeing intercepted by four unknown persons who were allegedlyarmed with knife and iron rods. PW4 Kushavarti, an incumbent of thecar and the domestic help of PW1 and PW2 also lends support andcorroborates their evidence. She has also been robbed of her CriAppeal-576-2016+-19- mangalsutra. She has also narrated the actual occurrence in herpresence, of which she too is a victim, and she also deposed aboutPW2 being abducted by two accused. PW1 informant and PW4Kushavarti are consistent about hiring a traveller vehicle to reach toChichondi Phata and information being passed to nephew of PW1. Allthese witnesses are categorical and consistent about arrival of amotorcycle at Chichondi Phata and PW1 narrating occurrence to themotorcyclist who further gave chase and brought back PW2 in barebodied condition. 8.PW2, who was abducted in her own car, has given a detailaccount of the ordeal faced by her after forcibly taken on knife point.She has narrated about she being stripped and raped in the rear seatof the vehicle while other accused was steering the vehicle on theroad and after being raped by accused no.1, accused no. 2 occupyingrear seat and he too raping her. This victim of rape has given detailaccount of the entire episode. She has spent almost half an hour inthe company of both accused. Therefore she had ample opportunity toidentify them. She has initially identified the photographs which wereconfronted by police who had maintained record of all history-sheeters. Considering the modus operandi and nature of crime, policegot a clue regarding involvement of accused who were habitual in CriAppeal-576-2016+-20- committing such crimes and were history-sheeters. She and herhusband PW1 both have identified accused not only in thephotograph but have also identified them in Test Identificationparade. Medical expert, who had examined PW2 has also beenexamined by prosecution to establish the offence. Evidence of PW2 isalso not rendered doubtful. Though she immediately did not reportthe occurrence, considering the nature of offence and her own statusto be a married woman, a few hours delay in reporting the occurrenceis insignificant. PW2, a victim of rape is also subjected to extensivecross and an unsuccessful attempt has been made to discredit hertestimony but all efforts apparently went in vain as she has withstoodthe extensive cross by defence counsel representing accused persons.There is nothing in her cross which would render her evidenceunworthy of credence. 9.We have carefully gone through the lengthy cross undertakenby each of the defence counsel, but we have noticed that numerousirrelevant questions are put to PW1 and PW2 like, for how muchdistance chase was given, whether there were wheel marks, whetherculprits were in masked condition, whether medical treatment foralleged beating was taken, registration number of the traveller vehicleused to travel to Chichondi Phata, distance between two places, time CriAppeal-576-2016+-21- at which PW2 reached back to the spot at Chichondi Phata, how manytimes vehicle was overtaken, whether other villagers gathered and atwhat time report was reduced into writing and for how long PW2 wasinquired with by Ambhora police and what time she was subjected tomedical examination, who accompanied her, whether her statementwas recorded at the hospital itself. Surprisingly, questions are posedabout geographical location of the spot even when PW1 and PW2were victims of serious offence which allegedly took place during thedead hours of night. 10.Independent witness like PW10 Shrikant, who had come to therescue of PW2, has also stepped in the witness box. He has also lentsupport to the testimony of PW1 and PW2. Nothing damaging hasbeen brought in his cross. 11.Likewise, PW5 Sunita, a villager, has also deposed about shereturning after attending a religious function and seeing PW1, PW2and others and finding PW2 in bare bodied condition, she has lent herown saree to PW2. She also corroborates the story of prosecution.Resultantly, here, there is corroboration from independent cornersand these witnesses ie. PW5 Sunita and PW10 Shrikant have alsosufficiently corroborated prosecution version. CriAppeal-576-2016+-22- 12.Panchas to the recovery discovery have also supported theprosecution. Recovery of Indica car, which was stolen from PW6Lalasaheb and used in commission of crime, is at the instance ofaccused Deepak and the same is proved by prosecution by examiningpancha witness PW19 Natha. Seizure of informant’s Spark vehicle,along with clothes of PW2 victim found in it, from Shirdi, is alsobrought on record through pancha witness PW11 Ansar Khan. Theornaments robbed from the informant party are also established to berecovered after short span at the instance of and from the house ofaccused Abhay by adducing evidence of pancha PW17 Vipin.Ornaments so robbed are also got identified through PW2-victim andPW4-Kushavarti. PW11 pancha Ansar Khan and PW2-victim have alsoidentified clothes which were on the person of PW2 on the day ofincident. PW8 Mahesh, who has acted as pancha to seizure of clothesof accused persons, has also supported prosecution. 13.C.A. reports Exhibits 258 to 261 revealed blood group of victimto be “O” and that of accused Deepak to be “B”. Blood group ofaccused Abhay could not be detected. However, human semen ofblood group “B” was detected on the underwear/nicker of rape victimas well as both accused of rape i.e. Deepak and Abhay. This evidence CriAppeal-576-2016+-23- in the form of C.A. reports also lends corroboration to the victim’sversion.14.Therefore, on critical analysis of testimony of PW6 Lalasahebregarding first episode, prosecution has cogently brought on recordthat his vehicle was stolen by four accused and he has received hisvehicle back which was seized from none other than the accusedpersons. 15.Testimony of PW1 informant, PW2 informant’s wife and PW4Kushavarti is consistent about their vehicle being intercepted and theyalong with son and PW1 informant and husband of PW4 to be beatenand forced out of the car and wife of PW1 to be abducted in their owncar after ornaments of PW4 were snatched. 16.Two accused i.e. accused no. 3 Vijay and accused no. 4 Sunilseem to have parted whereas accused nos. 1 and 2 i.e. Deepak andAbhay took wife of PW1 i.e. PW2 and in moving car they seem tohave committed forcible rape on her by taking turns. Evidence of PW2is intact about she being raped in a car which was on wheels i.e. inmoving condition by both accused by taking turns. She claims that shehas overheard name while they both were interacting with each other. CriAppeal-576-2016+-24- 17.PW5 Sunita, PW6 Lalasaheb and PW10 Shrikant, who areindependent witnesses, have also remained steadfast in theirevidence. Resultantly, their versions are supporting evidence of PW1and PW2. 18.Therefore, here, there is not only clinching evidence butoverwhelming evidence against all accused for committing highwayrobbery, forcefully snatching ornaments, stealing car, accused nos. 1and 2 abducting PW2 and committed forcible rape on her. Victim ofrape has also narrated the ordeal faced by her since being abducted.Medical evidence confirms sexual assault. Therefore, all charges arefirmly and cogently proved. The ingredients to attract these chargesare available in the evidence. Hence, penal sections viz. 392, 394,366, 341, 354 and 376 (2)(g) r/w 34 of IPC are squarely attracted.19.The upshot of the analysis is that evidence of PW6 Lalasaheb,PW1 informant, PW2 informant’s wife, PW4 Kushavarti, PW5 Sunitaand PW10 Shrikant is that prosecution version has been provedbeyond reasonable doubt. Apprehended Accused are not onlyidentified by PW1 informant, PW2 victim, PW4 Kushavarti and PW6Lalasaheb in court but also in Test Identification parade. CriAppeal-576-2016+-25- 20.Learned counsel for the appellants fervently submitted thatthere is no material to implicate accused for provisions under MCOCAct. That, even learned trial court has deviated from the acceptedprinciples of sentencing policy. Exorbitant fine has been slapped andfor all above counts, he seeks indulgence of this Court to that extentalso.21.In the light of above submissions, more particularly here, therebeing charge of offence under MCOC Act and specific points to thatextent determined by way of point nos. 9, 10 and 11 of the impugnedjudgment, we have gone through the evidence of all high rankingpolice officers who have received directions from the Head of thePolice Department of the State to record confessional statements andgather record of the crimes committed by them. Prosecution seems tohave undertaken the exercise of gathering criminal antecedents ofaccused persons. The same are made part of record. It needs to beborne in mind that in the current offence, accused were apprehendedonly on the basis of photographs identified by PW1 and PW2 andfurther investigation unfolded their involvement beyond reasonabledoubt and in the light of complete chain of circumstances which hasremained consistent, intact and unbroken. CriAppeal-576-2016+-26- 22.According to prosecution, accused no.1 Deepak is the mainaccused. Involvement of such accused and other co-accused has beendocumented, of which chart is also handed over by prosecution, and itis reflected and reproduced in the judgment of learned trial court inpara 59 and 60. It transpires that documents from Exhibit 170 to 203is a compendium of the criminal antecedents of accused documentedby Police Department and further proposal was put up before SpecialI.G., Aurangabad Range through S.P. Beed under MCOC Act and thesame is, on application of mind by such authority, approved byinvoking Section 23(1-a) of MCOC Act. In pursuance to it, AdditionalD.G., Dy.S.P. and S.P. ranking officers have worked in co-ordinationand recorded confessional statements of accused and thereafter,learned CJM, Osmanabad was approached for verification. He furtherseems to have recorded statements under 164 of Cr.P.C. by followingthe guidelines and the procedure contemplated in the statute. All suchofficers from Investigation Officer to Director General, have appearedand deposed before the court. Therefore, extra care seems to havebeen taken while invoking provisions under MCOC Act. Recordgathered and maintained by police authorities finds names andinvolvement of present appellants in various grievous offences ofsimilar nature which clearly suggests that the modus operandi is well CriAppeal-576-2016+-27- planned and in organized manner. Therefore, provisions of MCOC Actare rightly attracted and applied. 23.Except raising a plea before us, learned counsel for theappellants could not point out that there is false implication and thatthere is no material against these accused persons to face chargeunder MCOC Act. Police machinery has gathered sufficient materialwhich has been meticulously considered and studied by higher policeofficers reflecting application of mind while granting sanction. Thereis nothing brought to our notice regarding deviation or noncompliance of mandatory procedure. Even learned trial court hasextensively dealt and appreciated available evidence adduced byprosecution. Therefore, no fault can be found for guilt recorded bylearned trial court for such offence. 24.Learned counsel for appellant at the end would plead that asregards to accused Deepak and accused Abhay, there is sufficientmaterial regarding their involvement in various cases however, asregards to remaining two accused, their involvement is shown only intwo to three cases and they have already undergone more than sevenyears of imprisonment and hence, at least their sentence be reducedand brought down to already undergone and they be let off. CriAppeal-576-2016+-28- According to learned counsel, minimum sentence be imposed for all,as the period of incarceration already undergone is huge and further,recent trend in law calls for consideration of reformative theory andso he seeks concession in the sentence awarded by trial court.25.We have pondered over the above submission. We have alsoperused the list of offences involving accused produced by theprosecution, which is as under :Sr.No.CaseNo./CrimeNo.Police Stationand SectionsName of accusedDescription ofdocuments andexhibit numbers1.RTC No.419/2008,C.R. No.154/2007P.S. NagarTaluka, U/sec.394, 341, 403 ofIPC1. Deepak Jawale andthree others (who arenot accused in thiscase)Charge Exh. 170,Chargesheet Exh.1712.Sessions CaseNo.180/09,C.R.No.42/09P.S. Nagar Camp,U/sec. 395 of IPC1. Deepak Jawale2. Abhay Pore3. Vijay Bade and twoothers (who are notaccused in this case)Chargesheet Exh.173, CommittalOrder Exh. 1743.R.T.C. No.608/09, C.R.No.63/09P.S. MIDC Nagar,U/Sec. 394, 342R/w. 34 of IPC1. Deepak Jawale2. Abhay Pore and twoothers (who are notaccused in this case)ChargesheetExh.1754.R.T.C. No.429/09, C.R.No. 65/09P.S. Nagar,U/sec. 399, 408of IPC1. Deepak Jawale2. Vijay Bade 3. Abhay Pore and fiveothers, (who are notaccused in this case).ChargesheetExh.177, arrestpanchanama ofDeepak JawaleExh.178,committal orderExh.179. CriAppeal-576-2016+-29- 5.R.T.C. No.455/09, C.R.No.131/09P.S. Kotwali,U/sec. 379R/w. 34 ofI.P.C.1. Deepak Jawale2. Abhay Pore3. Vijay Bade and sixothers, (who are notaccused in this case).ChargesheetExh.180.6.R.T.C. No.482/09,C.R. No.134/09P.S. Kotwali,U/sec. 395 ofI.P.C.1. Deepak Jawale2. Abhay Pore3. Vijay Bade and fourothers, (who are notaccused in this case).ChargesheetExh. 1827.R.T.C. No.117/10,C.R. No.232/09P.S. Newasa,U/sec. 379R/w. 34 ofI.P.C.1. Deepak Jawaleand one another,(who is not accusedin this case).Chargesheet Exh.184, FIR Exh.185, complaintExh.186.8.R.T.C. No.219/11,C.R. No.107/10P.S. Kotwali,U/sec. 379R/w. 34 ofI.P.C.1. Deepak Jawale2. Abhay Pore3. Vijay Bade4. Sunil EkhandeFIR Exh.187,ComplaintExh.188,spot panchanamaExh.189.9.R.T.C. No.25/10, C.R.No. 403/09P.S. Tofkhana U/sec. 392R/w. 34 ofI.P.C.1. Deepak Jawaleand three others,(who are not accusedin this case).ChargesheetExh.196.10.R.T.C. No.138/10,C.R. No.160/09P.S. M.I.D.C.Ahmednagar,U/sec. 392, 341, 427 R/w.34 of I.P.C.1. Deepak Jawaleand one another,(who is not accusedin this case).ChargesheetExh.197.11.R.T.C. No.5/10, C.R. No. 117/09 P.S. Tofkhana,U/sec. 4/25 ofArms Act andU/sec.37(1)(3),135 of B.P. Act.1. Deepak Jawaleand one another,(who is not accusedin this case).ChargesheetExh.197/A.12.R.T.C. No.249/10,C.R. No.5/10P.S. M.I.D.C.Nagar, U/sec.394 R/w. 34 ofI.P.C.1. Deepak Jawaleand two unknown absconded accused,(who are not accusedin this case).ChargesheetExh.198.Apart from above 12 cases, prosecution has also brought onrecord following five cases : CriAppeal-576-2016+-30- Sr.No.CaseNo./CrimeNo.Police Stationand SectionsName of accusedDescription ofdocuments andexhibit numbers1.R.T.C. No.496/07,C.R. No.160/07P.S. TofkhanaU/sec. 379 R/w.34 of I.P.C.1. Deepak Jawale andtwo others (who arenot accused in thiscase)ChargesheetExh.183.2.R.T.C. No.178/10,C.R. No.393/09P.S. Kotwali,U/sec. 379 R/w.34 of I.P.C.1. Sunil Ekhande andtwo others (who arenot accused in thiscase)ChargesheetExh.199.3.R.T.C. No.127/10,C.R. No.366/09P.S. Kotwali,U/sec. 379 R/w.34 of I.P.C.1. Sunil Ekhande and one another (who is not accusedin this case)ChargesheetExh.2004.R.T.C. No.308/10,C.R. No.368/09P.S. Kotwali,U/sec. 379 R/w.34 of I.P.C.1. Sunil Ekhandeand one another(who is not accusedin this case)ComplaintExh.201,Chargesheet Exh.202.5.R.T.C. No.335/10,C.R. No.162/09P.S. M.I.D.C.Nagar, U/sec.379 R/w. 34 ofI.P.C.1. Sunil Ekhande andtwo others (whoare not accused in thiscase)FIR Exh. 203,chargesheetExh.297.26.Sentence always commensurate with the gravity of offence.Prayers are made before us that excessive sentence has been awardedand the same should be lowered. Needless to say, here, offences ofhighway dacoity, robbery, rape has been committed and as such,grave offences have been committed. Only in deserving cases,considering the nature of crimes, age and mitigating circumstances,powers can be exercised by appellate courts to lower the sentence.However, having taken into account the list of cases registered against CriAppeal-576-2016+-31- each of the above appellants, it is abundantly clear that they arehardened criminals. Repeatedly they have committed grave offencesof which record has been accumulated and therefore, we are doubtfulwhether they at all could be reformed even if given a chance. Theyare involved in serious offences like under MCOC Act and it is onlyupon sufficiency of material, they are indicted for such seriouscharges. Multi-layered enquiry confirms their involvement. Therefore,we are not inclined to interfere in the sentencing policy adopted bylearned trial Judge. Learned trial Judge has appreciated the evidenceas required by law and sound reasons are assigned for the findingsand conclusion reached at. Therefore, we do not find any fault in thesentence awarded by learned trial Judge. However, we do find thatlearned trial Judge has slapped exorbitant fine of Rs. 5,00,000/- andtherefore, only to that extent interference is called for. Hence, weproceed to pass the following order:ORDERI. The appeals are partly allowed.II.The conviction of all appellants/accused nos. 1 Deepak, 2Abhay, 3 Vijay and 4 Sunil under Sections 392, 394, 366, 341 of IPCand Sections 3(1)(ii) and 3(2) of the MCOC Act and the conviction ofappellants/accused nos. 1 Deepak and 2 Abhay under Section 376(2)(g) of IPC, vide judgment and order dated 22.08.2016 passed by CriAppeal-576-2016+-32- learned Special Judge (MCOC Act), Aurangabad in Special Case No.02 of 2010, is maintained.HOWEVERIII.The amount of fine imposed on all four appellants/accused videclauses 1(E) and 1(F) of the operative part of the order is herebyreduced to Rs.50,000/- each.IV.Excess fine deposited, if any, to be refunded to theappellants/accused after the statutory period.V.Rest of the judgment and order is maintained.VI.All the appeals are accordingly disposed off.VII. In view of disposal of appeals, all pending applications alsostand disposed of.VIII.We quantify fees of Mr. Abhaykumar D. Ostwal, Advocateappointed to represent the appellants in Criminal Appeal Nos. 542 of2016, 576 of 2016 and 482 of 2023 collectively to be at Rs.10,000/-which is to be paid the High Court Legal Services Sub-Committee,Aurangabad.[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]vre