Rajesh Sangamlal Jaiswal v. The State of Maharashtra

9.1) Learned counsel submit that, despite having sufficient opportunities and time, PW1-Victim did not immediately disclose the incident to her relatives or family members; that, even though, PW1- Victim had the support of said relatives or family members, she did not attempt to lodge a prompt report of the incident and instead, she went to her native place and kept silent about the rape for a long time, which is unnatural looking at the facts and circumstances of the case. They submit that, the medical evidence does not support the story of rape and rather, it indicates that PW1-Victim was habituated to sexual intercourse. They submit that, the testimony of PW1-Victim is suffering from significant improvements and discrepancies and therefore, it was risky to place implicit reliance on her testimony without corroborative evidence. Therefore, according to the learned counsel, there is reasonable doubt about the truthfulness of the prosecution case and hence the benefit of doubt should go to the accused. As a result, both the Appeals, be allowed.

10) Learned A.P.P. Mrs. Hiwrale for Respondent-State submitted that, there is sufficient, cogent and reliable evidence which did not meet adequate challenge in the cross-examination of the prosecution witnesses and, that the said evidence has proved the offences for which both the accused have been convicted. She submitted that the sentences imposed are reasonable and as such no interference is warranted in the impugned Judgment and Order of conviction and sentence.

11) Considering the rival submissions and nature of the charge, first it would be appropriate to look at the evidence of the victim. PW1- Victim has deposed that, she has studied up-to Std. X, from XXX High School and that her date of birth is 17th July, 1994. She has deposed that she was frequently going to Siddhivinayak Temple at Dadar along with her friend ‘D’ on Monday night; that accused no.2 was residing in her area; and that accused no.1 was a friend of accused no.2; and that the latter had proposed marriage to her, however, she had refused.

11.1) PW1-Victim has deposed that, on 16th May 2011, she had gone to the Siddhivinayak Temple along with her friend ‘D’; that first, they came to Malad station at about 10.00 p.m. by an auto rickshaw, there accused no.2 and his friends met them and, that then they all came to Goregaon by train. She has deposed that, accused no.1 contacted them at Goregaon station; from there, they came to Bandra by train, and then they went to Siddhivinayak Temple by walk. She has deposed that, after darshan, at about 4.30 a.m., they went to Elphinstone Road railway station; that some boys came at the said station and quarreled with accused no.2; that she and her friends, therefore, escaped in different directions; that she ran towards the backside of the railway station; that accused no.1 came towards her and contacted accused no.2 on his mobile phone and asked his whereabouts; that in turn accused no.2 called them to Dadar railway station. She has deposed that accused no.1 told her to accompany him to Dadar; that they went to Dadar station by taxi where accused no.2 and his three friends were present; and that they all had tea there.

11.2) PW1-Victim has deposed that, then accused no.2 suggested that she should go home by taxi, but she refused saying that the train was about to start and asked the accused no.2 to travel by train, however, the accused no.2 threatened her at the point of knife and forced her to sit in a taxi, and hence, she sat on the rear seat of the taxi; that accused no.2 and his three friends sat besides her and accused no.1 sat next to the driver, in the front; that then the taxi arrived at Pimpri Pada, Goregaon, near a water tank where the accused stopped the taxi. She has deposed that from there the accused took her to Mauni baba Zil; that there were big stones, and it was a lonely place; that the accused did not pay the taxi fare and instead assaulted the taxi driver and caused him to run away.

11.3) PW1-Victim has further divulged that, then accused nos.[1] and 2 asked her to mix an intoxicating substance in a beer and serve it to a watchman there, to help them commit theft, however, she refused. She has deposed that, then accused no.2 told his friends that, she knew everything about them and she should not be left; therefore, accused no.1 snatched her purse, took out her diary and visiting card and tore the same. She has deposed that, then accused no.1said to accused no.2 not to leave her and that, in case they leave her, she would contact the police and report against them. She has deposed that, then accused no.1 pushed her on a big stone lying there; that the accused no.2 sent one of his friends towards the road to keep a watch on the passers by; that two friends of the accused no.2 held her hands; that the accused no.1 forcibly removed her clothes; and that at that time, the accused no.2 was recording a video of the said act. She has deposed that, she resisted the accused no.1, requested him not to behave indecently and not to do anything wrong to her; that, she also requested the accused No.2 saying “aisa mat karo, aisa mat karo”, however, it fell on deaf ears of the accused no.2, and he continued the video recording. She has deposed that, then accused no.1 raped her.

11.4) PW1-Victim has deposed that, thereafter, the accused no.1 threw her clothes at her and asked her to accompany him or else they would commit gang rape on her. She has deposed that, the accused threatened her and took her to Popat compound auto rickshaw stand; that there, accused nos.[1] and 2 threatened her not to disclose the incident to anyone otherwise they would set her house on fire and kill her family members, and further threatened to defame her by circulating the video on internet and mobile. She has deposed that, thereafter she went to her maternal sister namely RJ, at ‘K’ Nagar, Mumbai; that her sister asked her as why she was frightened, disturbed and pale; that she replied that, she was suffering from a headache and went to sleep. She has deposed that, thereafter, she came home at night; that her father was at home, however, she did not disclose the incident to him as he was suffering from paralysis and the doctor had cautioned that he may die if he suffered a mental shock.

11.5) PW1-Victim has deposed that, after 4/5 days of the incident, they went to her native place, at U.P., as her grandmother was unwell; that there they met the grandmother and stayed for two days; that thereafter, they went to her maternal aunt at XXX, where she stayed for a month and then, she returned to Mumbai. She has deposed that, her parents learnt about the incident through TV news and internet, hence, they took her to the Police Station where police recorded her statement and seized clothes.

11.6) As noted in the evidence, the video of the incident was shown to PW1-Victim while recording her deposition. On viewing the video, she identified the accused nos.[1] and 2 seen in the video and informed the role played by them and others; that the juvenile wearing the red shirt had held her hand; that accused no.1 had forcibly removed her clothes; and that she had resisted him. (It appears that the victim was unable to view the video further and she did not want to see the same.) Further, PW1-Victim has deposed that the accused no.2 had recorded the incident on the mobile phone of accused no.1. She has deposed that the accused had threatened her with dire consequences at the knife point if she disclosed the incident to anyone. Further, she identified her seized clothes which matched with the video. She identified the spot of the incident seen in the video. She has identified the knife (Article-5). She has deposed that, accused no.1 threatened her to leave the spot, else they would again commit rape on her; that she was terribly afraid due to the incident; that accused no.1 threatened to kill her; and that somehow she wore her clothes. She has deposed that the police recorded her statement after one month of the incident as the accused had threatened to kill her and her family members and to set her house on fire if she disclosed the incident to anyone.

11.7) In the cross-examination, PW1-Victim has admitted that, she knew the accused for 7 to 8 months prior to the incident; that she was visiting Siddhivinayak temple from the last 1 to 1½ months prior to the incident; they used to go by train sometimes to Bandra and sometimes to Andheri; and that from there, they used to walk up to the temple. She has admitted that, usually, they used to start walking at 9.30 p.m. and reach the temple at about 2.00 a.m. to 3.00 a.m. She has denied that every time she used to go to the temple with a different boyfriend.

11.8) PW1-Victim has admitted that, one Imran was the boyfriend of her friend ‘D’; that she, said Imran, accused nos.[1] and 2, Gotya and Ramya were friends; they used to go to the temple in a group; that there was another group of friends, who were also visiting the temple for darshan; that after darshan, they used to have breakfast and then return home; that both the groups were going separately.

11.9) PW1-Victim has admitted that, on 17th May 2011, at 6.30 a.m., there was a scuffle in between two groups at Elphinstone Road station. At that time, accused no.1 and she ran towards different directions.

11.10) PW1-Victim has admitted that, till she was in Mumbai, she did not disclose the incident to anyone; that she returned to Mumbai one month after the incident; that her father and one police had come to the railway station to receive her; that she did not watch the video of the incident anytime before her examination-in-chief; that she did not shout for help when she was threatened by accused at Elphinstone Road railway station; that when the accused pointed a knife at her, she did not try to get down from the taxi even though she was seated at the side of the door; that she did not shout for help from Elphinstone Road railway station up-to Pimpripada as the accused had pointed a knife at her; that she has never been to Pimparipada at any time; that she tried to shout for help after she got down from the taxi but the accused held her hand and gagged her. She has denied that the video she viewed in the examination-in-chief did not relate to her and accused no.1.

11.11) PW1-Victim has admitted that she did not lodge a report of this incident at her native place. She has denied that she has not lodged such a complaint or informed about the incident to anybody, because no such incident had occurred.

11.12) PW1-Victim has admitted that, before the incident, accused no.1 had not done anything wrong to her; that four persons were seated on the rear seat of the taxi; that the accused persons did not commit anything wrong to her after the incident of scuffle at Elphinstone Road station till they had been to the hotel to have tea; that she did not shout for help from Goregaon up-to the spot of incident; and that she has never been to the spot of the incident at anytime except on the day of incident. She admits that she knew there was a place by the name Mauni baba Zhil but she did not know exactly where it was located. She has admitted that she came to know about Mauni baba Zhil as the accused were talking about it at the spot of the incident.

11.13) PW1-Victim has admitted that, after the incident, neither she nor the accused ran away; that fifteen minutes were required to reach the Popat compound rickshaw stand; that there was a rush at the rickshaw stand; that she did not disclose the incident either to the rickshaw driver or to anyone present at the rickshaw stand; that at that time she was weeping but not loudly. She has admitted that nobody threatened her during the 4/5 days after the incident when she was at home; that her father was with her when she went to her native place; that she stayed at her native place for one month but during that period she did not lodge any complaint against the accused or disclose the incident to anybody. She has further admitted that she would not have filed any complaint if her parents had not disclosed the incident to her. She has denied that as accused no.2 refused to marry her, and as accused no.1 was friend of accused no.2, she has falsely implicated them in this case.

12) PW4-Komal Waghmare has deposed that, in her presence the police had seized the clothes of PW1-Victim and recorded the seizure panchnama (Exh.27). She has identified the said clothes. The defence declined to cross-examine this witness, hence, her testimony has gone unchallenged.

13) PW6-Mohd. Salim Khan has testified that he knew both the accused and the three JBs; that in the year 2011, he was sitting in Mohd. Chacha Garden; that at that time, the accused no.2 showed him a video on his mobile phone, but the display of the mobile was not good; that therefore, accused no.2 removed the memory card from his mobile and inserted it in his mobile and showed him the video; that he saw the accused no.1 and the three JBs in the video; that accused no.1 was doing sexual intercourse with a girl and the JBs had held her hands. PW6-Mohd. Salim Khan has deposed that, the accused no.2 had also disclosed to him that there was quarrel between him and the PW1-Victim; that due to said quarrel, all the accused persons had taken the victim near a Dargah, when she had visited the Siddhivinayak temple; and that the accused no.1 committed rape on PW1-Victim and other three accused persons had held her hands.

13.1) In his cross-examination, PW6-Salim Khan has admitted that video similar to the video shown to him is available in market. He has denied that he has not seen anybody in the said video; that he has not seen the accused no.1 while committing rape in the video; that he has deposed false that he had seen the accused no.1 while committing rape in the said video; and, that he identified the accused on the say of police.

14) The testimony of PW2-A.P.I. Marathe is as verbatim to his report (Exh.21). In the cross-examination, PW2-A.P.I. Marathe has admitted that he has not disclosed the name of his friend who told him about the news of the incident on India TV; that he has denied that the faces of accused were not clear when he watched the news. He has denied that as he failed to arrest the real culprits, he filed a false case against the accused under pressure of the media. He has admitted that, the reporter of India TV or officer of the said channel has not lodged any complaint about the incident before lodging the report (Exh.21); and that he has lodged the report (Exh.21) before disclosure of the names of accused by PW1-Victim. He has denied that he has wrongly identified the accused.

15) Evidence of PW3-Iqbal Mamdani is that, on 18th June 2011, his informer informed him that he had an urgent story; that he contacted the informer at Gokuldham Goregaon (East) at 9.00 p.m.; that the informer showed him a video of this incident on his mobile; that he sent the said video to his mobile by blue-tooth and asked the informer to delete it from his mobile; that thereafter, he consulted the National Editor of Delhi and Mumbai bureau head; that on 1st July 2011, at 8.00 p.m. he published the news of the gang rape on India TV; that the face of PW1- Victim was blurred before publishing the video; that on 2nd July, 2011 he received a letter from the police demanding the video of this incident; that he copied the said video in the CD (Article-8) and gave it to the police; that on 4th July 2011, the police seized the said CD under the panchanama and sealed the same. During his examination-in-chief, the said video was played in the open Court which he identified to be of this incident.

15.1) In the cross-examination PW3-Iqbal Mamdani has admitted that for the first time he saw the video of the incident on the mobile phone of the informant who informed him the incident; that immediately after viewing the video, he informed his superiors at Delhi and Mumbai offices; that there was no written permission from his office to publish the video in media; that he came to know from the said informer that he had viewed the said video on the mobile phone of one of the offenders; and that he has not disclosed the name of the person on whose mobile the said video was first viewed.

15.2) PW3-Iqbal Mamdani has admitted that he had prepared the CD when the police demanded it after publication of the news; that, the CD was prepared on his office computer; and that he prepared the CD only of the material which he had copied from the mobile phone of the informer. He has denied that he manipulated the said CD for promotion of his channel; that he has not received any video from any informer; and that no CD was prepared by him and given to the police.

16) PW5-Narendra Gohil has testified that, on 4th July 2011, in presence of him and co-panch Krishna More, PW3-Iqbal Mamdani produced the CD (Article-8); that Police seized the CD under seizure panchnama (Exh.31); that on 12th July 2011, Police played the video in the said CD in his presence, the co-panch and accused no.2; that in the video some persons had held the victim; and that one person was committing rape on the victim. However, he has deposed that he is unable to identify the accused persons due to lapse of time. He has deposed that, after viewing the video, police re-sealed the CD and recorded the panchnama (Exh.,34). Nothing material has emerged in the cross-examination of this witness to disbelieve his aforesaid testimony.

17) PW7-Dr. Kalyankar, Medical Officer has deposed that, pursuant to the letter of police (Exh.38), he examined the PW1-Victim physically and clinically with her prior consent; that she narrated the history of the sexual assault on her; that the victim’s hymen was completely torn, the tear was old (healed) and there were few tags of hymen, therefore, it was difficult to state the position of tear. He collected the vaginal swab and blood samples for grouping. He referred the X-ray plate (Exh.40) and deposed that as per the ossification test PW1-Victim was aged 17 to 18 years at the time of examination, and accordingly, he issued the medical certificate (Exh.39). In the cross-examination PW7-Dr. Kalyankar has admitted that based on the aforesaid mdical examination, PW1-Victim may be habituated to sexual intercourse. He has denied that no history was given by PW[1].

18) PW8-Dr.Anand, Medical Officer, has testified that, as per the police letter (Exh.42) he examined the accused nos.[1] and 2. That on the physical and local examination, nothing was found suggesting that accused nos.[1] and 2 are impotent and accordingly, he issued the medical certificates (Exhs.43 & 44). The defence declined to cross-examine this witness.

19) PW9-Santosh Tiwari deposed that on 10th July 2011, at Kurar Police Station in the presence of him and co-panch Vilas Gorile, accused no.1 voluntarily disclosed that he is ready to produce the clothes which he had worn at the time of incident. The Police prepared the memorandum of the said disclosure (Exh.46); that thereafter, the accused no.1 led the Police and panchas to Ekpal Vikas Rahiwasi Sangh Malad (East); that from there the accused no.1 took them to one room near a wall; that Lalsingh Chand, father of accused no.1 was present in the room; that the accused no.1 produced one blue jeans pant and brown colour T-shirt (Articles-6 &

7) which were hanging in the room; and that the Police seized the same and recorded the panchanama (Exh. 47).

19.1) Except suggestions of denial, nothing significant was put to PW[9] in the cross-examination, and he has not caved into any suggestion. Hence, his testimony cannot be brushed aside.

20) PW10-Akbar Khan has testified that, on 2nd July 2011, police had called him at Kurar Police Station; that at that time, accused no.2 disclosed that he would show the place where he recorded the aforesaid video; that police recorded the said disclosure (Exh.51); that then they proceeded in a police vehicle; that the accused no.2 led them near one hill in Adiwasi Pada; there, the accused no.2 showed them a stone, which was 4/5 feet in breadth; that accordingly, the Police recorded the panchanama (Exh.52).

20.1) The Advocate for accused no.1 declined to cross-examine this witness. In the cross-examination for accused no.2, PW10-Akbar Khan admitted that, police informed him that they have to visit at Adiwasi Pada and panchanama is to be recorded at the place where the video shooting was recorded. PW10-Akbar Khan has denied that the contents of the said panchanama were read over to him outside the Court hall; that he was not aware of the contents of the said panchanama; and that, on 2nd July, 2011 the accused did not give the disclosure statement and did not lead them to the spot of incident, as above.

21) PW11-Manoj Saha deposed that on 4th July 2011 in the presence of him and co-panch Ashok Nirman, police arrested the accused no.1 and searched his person. One Micromax mobile and cash Rs.70/- (Articles-9 & 9A) were found on the person of accused no.1. The police seized the same and recorded its panchanama (Exh.35). The defence declined to cross-examine this witness.

22) PW12-Anil Chavan, police-cum-muddemal clerk of Kurar Police Station has testified that, the aforesaid muddemal articles seized during the course of investigation were deposited in his custody from time to time; and that he carried and deposited the same with the office of the R.F.S.L. concerned for chemical analysis. In this regard, he referred to the muddemal entries (Exh.56, 56-A and 56-B).

23) PW13-P.I. Gosavi has stated that, on 2nd July 2011 at about

8.00 p.m. to 8.30 p.m., the video of this incident of rape was being shown at India TV channel; that the face of PW1-Victim was blurred, however, faces of the accused persons were clearly shown; that the said video was pertaining to an incident of rape that had occurred in the National Park, Goregaon; that he identified the accused no.1 from the video, that during enquiry police received an information that the accused no.2 recorded the video of the incident and his name was Rajesh Jaiswal. He has deposed that the accused no.2 was arrested on 2nd July 2011; that PW2-API Marathe enquired with accused no.2 and lodged the report (Exh. 21); that he registered the crime under FIR (Exh.22); that he arrested the accused no.2 and recorded the arrest panchanama (Exh.58). He has deposed that on 2nd July 2011, accused no.2 made the disclosure statement (Exh.51) that he would show the place of the incident; that the accused no.2 led him and the panchas to Nimboni Pada, National Park Forest and showed the spot of the incident; and that accordingly, he recorded the panchama (Exh.52).

23.1) PW13-P.I. Gosavi has deposed that, the accused no.2 disclosed the name of PW1-Victim; that he recorded the statement of the victim’s father on 3rd July 2011; that on 2nd July 2011, he gave the letter (Exh.25) to India TV to provide a copy of the video of the incident; that on 4th July 2011, PW3-Iqbal Mamdani produced the CD (Article-8) containing copy of the said video; that he seized the same under the panchanama (Exh.31); that the investigation revealed that accused no.2 showed the video of the incident to PW6-Mohd Salim who had transferred that video to his own mobile phone from the memory card of the accused no.2.

23.2) PW13-P.I. Gosavi has deposed that, crime branch police arrested the accused no.1 on 4th July, 2011 and seized from his possession a mobile and cash Rs.70/- (Article-9 and 9/A) under panchanama (Exh.35); that on 10th July, 2011 accused no.1 made the disclosure statement (Exh.46) that he would show the place where he kept his clothes which he had worn at the time of incident; that then, accused no.1 led him and panchas to his house at Pimpri Pada and recovered the said clothes, i.e., Jeans pant and T-shirt (Article-6 & 7); and that the clothes were seized under the panchanama (Exh.47). He has deposed that accused no.2 made the disclosure statement (Exh.59) pursuant to which the knife (Article-5) was recovered; that it was seized under a recovery panchanama (Exh.61). He has deposed that pursuant to the willingness of accused no.2, he played the video in the CD (Article-8) in the presence of the panchas; that on viewing the video, the accused no.2 identified and disclosed the name of accused no.1 and the JBs from their role as seen in the video; and that accordingly, he recorded the panchanama (Exh.34) and resealed the CD.

23.3) PW13-P.I. Gosavi has deposed that, on 8th July 2011, he referred the victim for medical examination along with letter (Exh.38); that on 11th July, 2011 the accused nos.[1] and 2 were referred for medical examination under the letter (Exh.42) and then, he obtained their medical certificates. He forwarded the blood samples and the muddemal articles for chemical analysis under forwarding letters under Exhs. 61 and 62, respectively. On 20th August 2011, he forwarded the seized mobile and the CD for forensic analysis under letter (Exh.64). He referred the relevant CA reports (Exh.65 to 70).

23.4) In cross-examination, PW13-P.I. Gosavi has admitted that he has not verified the device (equipment) by which the CD (Article-8) was prepared. He has denied that the actual culprits were not traced, therefore, he has falsely implicated the accused no.1 in this case. He has admitted that, he did not find any video in the mobile phone of accused no.2; that, he did not seize the mobile phone of the person who gave the video recording to India TV; that no mobile was detected during the investigation to show that said video was transferred from the mobile phone of the accused; that no video was found with accused no.1. He has denied that, accused no.1 has not made the disclosure statement leading to discovery of the spot. He has denied that he has falsely implicated the accused in this case.

24) Having considered the prosecution evidence in detail thus, first we deal with the question of admissibility of the video of the incident in evidence. Learned Advocates for the accused vehemently submitted that the video of the rape incident in the CD (Article-8) is not proved for several reasons. Firstly, it is not a copy of the original video allegedly recorded by accused no.2 in the mobile phone of accused no.1. Secondly, there is no documentary evidence that said video was really copied by PW3-Iqbal Mamdani from the mobile phone of his informer by using blue-tooth. Thirdly, there is no evidence as to when, where and how the informer of PW3-Iqbal Mamdani copied the video of incident. Therefore, according to the learned counsel for the accused, the subject video cannot be rated as a computer output covered within the expression ‘electronic evidence’. The next objection is that the video in the CD is not supported by a certificate issued under Section 65-B of the Indian Evidence Act. Therefore, the alleged video of the incident contained in the CD is not legally admissible evidence, and hence, it be discarded.

25) As against this, learned A.P.P. emphatically submitted that, the defence has not sufficiently challenged the evidence of PW3-Iqbal Mamdani that he copied the video in the CD; that the defence has not raised the aforesaid grounds and objected the video in the CD when the said video was viewed in presence of the witnesses in open Court, was identified by the witnesses and the said CD was marked in the evidence as Article-8. She submits that, therefore, at this belated stage, the Appellants cannot dispute the admissibility of the said video, raising the said grounds.

26) Looking at the aforesaid rival submissions, it is apt to refer the decision of this Court in the Nitin Gorakhnath Sartape & Ors. Vs. The State of Maharashtra[1], wherein this Court has considered several decisions of the Apex Court on the aspect of ‘electronic record’. Firstly; in para 300, this Court referred the case of Sundar @ Sundarrajan Vs. State by Inspector of police[2]. In this case the Apex Court in detail considered the admissibility of CDR; and how evidence of CDR is to be considered i.e., the law as it then stood, at the time of trial. The relevant paragraphs are paragraphs 31 and 32 of the said Judgment, which read thus:- “31. One of the earliest decisions on the provision was of a two judge bench of this Court in State (NCT of Delhi) vs. Navjot Sandhu- (2005) 11 SCC 600, where the Court held that Section 65-B was only one of the provisions through which secondary evidence by way of electronic record could be admitted and that there was no bar on admitting evidence through other provisions. The Court noted that:

150. According to Section 63, “secondary evidence” means and includes, among other things, ‘copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies’. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para

276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and

65. (emphasis supplied)

32. The principle which was enunciated in Navjot Sandhu was overruled by a three judge bench of this Court in Anvar P.V. where it was held that:

22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the Court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.”

27) In para 301, this Court noted that, the Apex Court Judgment dated 4th August 2005 in (NCT of Delhi) Vs. Navjot Sandhu[3], was subsequently overruled in Anvar’s case on 18th September 2014. According to the learned A.P.P., in the case on hand, the last witness was examined before January, 2014 and the impugned Judgment and Order was passed on dated 23rd January, 2014, therefore, the law governing Section 65-B certificates will have to be applied, as it then stood i.e., at the time of recording the evidence at the trial stage, i.e., in consonance with the ruling in Navjot Sandhu’s case, which relaxed the need for a 65-B Certificate, for proving electronic records.

28) In para 302, this Court observed that, the Apex Court in Sonu @ Amar Vs. State of Haryana[4], was called upon to consider whether the judgment in Anvar P.V. Vs. P.K. Basheer[5] should be retrospectively applied or whether it should find a prospective application. Accordingly, in para 40, the Apex Court held as under: “40. This Court did not apply the principle of prospective overruling in Anvar case [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473: (2015) 1 SCC (Civ) 27: (2015) 1 SCC (Cri) 24: (2015) 1 SCC (L&S) 108]. The dilemma is whether we should. This Court in K. Madhava Reddy v. State of A.P. [K. Madhava Reddy v. State of A.P., (2014) 6 SCC 537: (2014) 2 SCC (L&S) 305] held that an earlier judgment would be prospective taking note of the ramifications of its retrospective operation. If the judgment in Anvar’s case is applied retrospectively, it would result in unscrambling past transactions and adversely affecting the administration of justice. As Anvar’s case was decided by a three-Judge Bench, propriety demands that we refrain from declaring that the judgment would be prospective in operation. We leave it open to be decided in an appropriate case by a three- Judge Bench. In any event, this question is not germane for adjudication of the present dispute in view of the adjudication of the other issues against the accused.” (emphasis supplied)

29) In para 303, this Court noted that, since, the question was left open in Sonu (supra), the aforementioned legal labyrinth of Section 65-B certificate, was finally navigated in Sundar @ Sundarrajan (supra), where the Apex Court held in para 44 as under: “44. Therefore, we are inclined to agree with the ratio in Sonu by not allowing the objection which is raised at a belated stage that the CDRs are inadmissible in the absence of a Section 65B certificate, especially in cases, where the trial has been completed before 18 September 2014, i.e., before the pronouncement of the decision in Anvar P.V.. ….”

30) In para 304, this Court observed that, “… it was canvassed in Sonu (supra), that there are two categories of objections which can be raised regarding the admissibility of documents, the first category is, where the document is per se inadmissible i.e., inherently inadmissible; and, the second category is, where the objection is regarding the mode of proof, which is procedural. In the latter case, if the objection is raised at any stage subsequent to the marking of the document as an exhibit, the said objection regarding the mode of proof cannot be allowed. It was held, that the crucial test, is whether the parties tendering the evidence would have had the opportunity to cure the defect by resorting to such mode of proof as would be regular, if such an objection was raised at the time of marking such documents as exhibits”.

31) In this connection, in para 305 this Court held that, “… it would be apposite to place reliance on Sonu (supra), in particular, paragraph 32, of the said judgment:” “32. It is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by Section 65-B (4). It is clear from the judgments referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. The crucial test, as affirmed by this Court is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 CrPC, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof.”

32) Lastly; in para 306, this Court concluded that, “It is thus evident from the aforesaid judgments and in particular, the judgment of the Apex Court in the case of Sundar @ Sundarrajan (supra), that an objection that the CDRs are inadmissible in the absence of a 65-B Certificate, if raised at a belated stage, will not be allowed in cases where the trial has been completed before 18th September, 2014....”.

32.1) There is no difference between a hard copy of a CDR and a copy of a video recording, as both are computer output and thus, an electronic record. In the case in hand, evidence of the last witness was completed on 15th November, 2013, and the judgment was delivered on 23rd January, 2014. Absolutely, there is no challenge to the evidence of PW3-Iqbal Mamdani that the electronic evidence i.e., video in the CD (Article-8) was copied by him from the video available with him. On the contrary, in his cross-examination it has been brought that he copied the said video using a computer in his office. That apart, when the said video was viewed in the open Court during the trial and identified by the material witnesses, it was not objected by the defence for want of certificate under Section 65-B of the Evidence Act. However, the said objection has been raised for the first time in these Appeals, which, in view of the reported cases we have discussed above, is not sustainable at such a belated stage. There is nothing in the cross-examination of PW3-Iqbal Mamdani and PW13-P.I. Gosavi as regards non-compliance with the other conditions stated in Section 65-B of the Evidence Act, in relation to the video in the CD (Article-8). Thus, in the present case, we hold that the video of the incident in the CD (Article-8) can be looked into, the same having been marked in the prosecution evidence so.

32.2) Be that as it may, as provided in Section 167 of the Evidence Act, the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision. As such even if we ignore the evidence adduced by the prosecution vis-a-vis the video of the incident, we in the facts find the testimony of the victim of a sterling quality, inspiring confidence to safely rely upon it for reasons herein under.

33) In so far as the evidence of PW6-Mohd. Salim Khan is concerned, he has specifically deposed that the accused no.2 had shown him the video of the incident. There is no competent challenge to this evidence in the cross-examination. Admittedly, accused no.2 was not covered in the video, as it was recorded by accused no.2 on his mobile phone, as such, there was nothing incriminating against the accused no.2 in the video. It appears from the Victim’s evidence, that the accused no.2 was shooting the incident on his mobile and hence, the accused no.2 showed the said video to PW6-Mohd. Salim Khan. For these reasons, the claim of PW6-Mohd. Salim Khan, that the accused no.2 had shown him the video of the incident, cannot be ignored. No doubt PW6-Salim Khan has given certain admissions in the cross-examination, that he was deposing against the accused at the instance of police, however, no undue value can be attached to said admissions considering the evidence that has come on record as a whole. It appears that said admissions were given deliberately as PW6-Mohd. Salim Khan and accused no.2 were schoolmates.

34) Now, before adverting to other material aspects in the evidence, it would be apposite to refer to the principles relating to appreciation of evidence of a victim of rape, as enunciated by the Apex Court in Raju and others Vs. State of M.P.6, in paragraphs 11 and 12. The relevant part is as under:

34.1) In Rai Sandeep alias Deepu Vs. State (NCT of Delhi) [(2012) 8 SCC 21), the Hon’ble Supreme 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 caliber 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 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. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

34.2) Guided by the aforestated observations, when we subjected the evidence of PW1-Victim to necessary scrutiny, we find that, despite lengthy cross-examination, nothing material has emerged to discard PW 1’s testimony that both the accused and the JBs abducted her by threatening her on knife point; that the accused no.1 committed rape on her with the aid and assistance of accused no.2 and the 3 JBs,; that the accused no.2 video recorded the rape on the mobile phone of accused no.1. It is trite that, if the totality of the circumstances appearing on record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her testimony. Here, the testimony of PW1-Victim is natural and inspires confidence even without any corroboration.

35) It is pertinent to note that, on viewing the video in the CD (Article-8), PW1-Victim has clearly identified both the accused in the video and informed the role played by them and the JBs. Further, she has identified her seized clothes which matched with the video. Seizure of the clothes and its identification is not at all challenged in the crossexamination of PW1-Victim and PW4-Komal Waghmare. As held above, the video in the CD cannot be disbelieved. The said video evinces that the PW1-Victim was forcibly raped by accused no.1 and the others with him aided in the said act. Thus, the said video has strongly corroborated her entire testimony. In short, the evidence of PW1-Victim vis-a-vis the video of the incident, if juxtaposed, is found to be very consistent in so far as the date, time and place of the rape and its video recording is concerned.

36) PW1-Victim wept during the examination-in-chief when she was reminded that her diary and visiting card were torn by the accused. Further, when the video of the incident in the CD (Article-8) was shown to her in the open Court, she could not face it or gather courage to view the video completely, and recalling the severe psychical trauma caused due to the incident, several times she wept/cried before the trial Court. This demeanor was quite natural, looking at her tender age when she was ravished and when she testified before the Court, just after one year of the incident. The rapist degrades the very soul of the helpless female. Therefore, said demeanor makes thePW1-Victim’s version more reliable.

37) The prosecution has also heavily relied on the evidence of PW13-P.I. Gosavi that pursuant to the willingness of accused no.2, he displayed the video in the CD (Article-8) in the presence of the panchas; that on viewing the video the accused no.2 identified and disclosed the names of the co-accused from their role as seen in the video; that accordingly, he recorded the panchamana (Exh.34) and resealed the CD. This evidence is corroborated with the testimony of PW5-Narendra Gohil. No doubt some parts of the evidence of PW13-P.I. Gosavi cannot be considered it being in the nature of a confession before a police by an accused, however, on viewing the video by accused no.2 his subsequent conduct of disclosing the name, role and identity of accused no.1, the JBs and identification of the spot of the incident as seen in the video, is admissible under Section 8 and 27 of the Evidence Act. Therefore, to that extent, the evidence of PW13-P.I. Gosavi and the proportionate narration in the report (Exh.21) cannot be spurned in to-to. Thus, said evidence also corroborate the evidence of PW1-Victim. Moreover, in the crossexamination, it was specifically suggested to PW13-P.I. Gosavi that as he failed to arrest the real culprits, he filed a false case against the accused under pressure of media, meaning, thereby the accused have not disputed that the woman seen in the video was raped and what they disputed is only the identity of that woman and the culprits, which otherwise has been well established by the witnesses by identifying both the accused and the JBs on viewing the video and in the open Court.

38) The evidence of PW10-Akbar Khan and PW13-P.I. Gosavi that the accused no.2 made the disclosure statement and discovered the spot of the incident did not meet enough challenge in their crossexamination. Thus, said evidence is admissible under Section 8 and 27 of the Evidence Act as it is a physical discovery of the spot of the incident, thereby confirming the electronic discovery of the spot when accused no.2 identified the said spot on viewing the said video in presence of the panchas and PW13-P.I. Gosavi (vide Exh.34). PW1-Victim has specifically deposed that there was a big stone, and that she was raped by accused no.1 on the same stone. Further, she identified the said spot of the incident on seeing the same in the subject video when played in the open Court. Besides that, she has also informed the name of the place where the said spot is located/situated. Therefore, the spot of incident stands established.

39) The evidence of PW13-P.I. Gosavi that the accused no.2 made the disclosure statement (Exh.59) leading to recovery of the knife (Article-

5) was not sufficiently challenged in the cross-examination. PW13-P.I. Gosavi had no reason to foist that knife against accused no.2. Therefore, the said discovery is dependable. PW1-Victim has identified the said knife as one used in the offence. Thus, it added additional strength to her version that the accused threatened her at the knife point, then abducted her and at the end she was raped. The medical evidence reveals that, the accused no.2 was capable of performing sexual intercourse. Thus, it corroborates the testimony of PW1-Victim.

40) The police letter (Exh.64) seeking forensic examination of the seized mobiles, memory card and sim cards coupled with the Forensic Report (Exh.68) indicate that, total 19 porn videos were found in the memory card, allegedly seized from the accused no.2. However, the Arrest Form of accused no.2. is silent about the said memory card. There is no other evidence about the seizure of that memory card. Hence, the Forensic Report (Exh.68) in that regard is of no avail to the prosecution.

41) Learned Advocates for the accused pointed some discrepancies in the evidence of the witnesses and in particular of PW1-Victim, however, said discrepancies are not significant so as to throw the prosecution case on board. In this context, it is advantageous to refer the decision in the case of Arumugam Vs State of Tamil Nadu.7, wherein it is held that, “normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to laps of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be catagorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so”. In other words, in case discrepancies pointed out are in the realm of pebbles, Court should tread upon it, but if the same are boulders, Court should not make an attempt to jump over the same.

42) No doubt the medical evidence indicates that PW1-Victim was habituated to sexual intercourse. Therefore, according to the learned Advocates for the accused, corroboration is lacking in this case. Said fact, however, is not sufficient to disbelieve the PW1-Victim’s claim about rape on her by accused No.1. In this regard, it is useful to refer the decision in the case of Ganga Singh Vs. State of M.P.8, wherein it has been held that, “Even though there was no medical evidence to corroborate the testimony of the prosecutrix, such corroboration is not necessary where the evidence of the prosecutrix was otherwise consistent and stood corroborated by other circumstances and the FIR”. Thus, it can be seen that medical evidence is not sine qua non for proof of the prosecution case relating to sexual offence. The litmus test is the victim’s credibility, her veracity, her truthfulness and how far she has withstood the test of cross-examination. If she has, then notwithstanding absence of medical evidence her sole testimony is sufficient to prove the occurrence of incident.

42.1) Contextually, a decision in the case of State of H.P. Vs. Manga Singh[9], cited by learned A.P.P is also considered here, wherein in para 12 it is held as under: (12) “It is well settled by a catena of decisions of the Supreme Court 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. However, having regard to the circumstances of the case, medical evidence may not be available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the Court”.

43) Learned Counsel for both the accused at pains submitted that post-incident conduct of PW1-Victim was very unnatural as she did not divulge the incident to her relatives and family members for long time. She did not even try to lodge a report of the incident at her native place with the support of her father or any other relative. Thus, there was inordinate delay on her part in disclosing the incident to police and that, said delay has not been properly explained by the prosecution. Therefore, the learned Counsel submitted that, it is probable that as the accused No.2 refused marriage with PW1-Victim, she falsely stated that rape was committed on her. The learned Counsel submitted that, as India TV channel had published the news about the rape incident, there was pressure from the media on the police. Therefore, the learned counsel submitted that, both the accused and the JBs have been made scapegoat by the police with the help of the Victim’s statement, to show that the crime was detected. As such, the prosecution story is not free from a reasonable doubt.

44) Facing a similar question as to delay in lodging an F.I.R. of the incident of a gang rape, in the case of Mohammed Ashfaq Dawood Shaikh Vs. The State of Maharashtra10, in paragraph 79, this Court observed that, “… the law on the aspect of delay in lodging the F.I.R in such cases is no more res integra and by a catena of decisions, it has been held that if delay has been properly explained, then there should not be any reason to suspect any embellishment or afterthought. …The Hon'ble Supreme Court in the case of Amar Singh Vs. Balwinder Singh and others11, held thus; “Mere delay by itself is not enough to reject prosecution case unless there are clear indications of fabrication. Delay by itself 10 2022 All MR (Cri) 402.

is not a circumstance to doubt the prosecution case. At the most, it will call upon the Court to subject the evidence to a closer scrutiny. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters of appreciation and much depends on the facts and circumstances of each case and for this a host of circumstances like the condition of the informant, the nature of offence, the circumstances in which the incident has taken place etc. have to be taken into consideration". In the words of the Apex Court, “There is no mathematical formula by which an inference can be drawn either way, merely on account of delay in lodging the FIR”.

44.1) In paragraph 80 thereof, this Court referred the decision in case of Ravindra Kumar and another Vs. State of Punjab12, wherein the Apex Court has held as under; “The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course, a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR, the demerits of the delayed FIR cannot operate as fatal to any prosecution case. Even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. Hence, when there is a criticism on the ground that FIR in the case is delayed, the court has to look into the reason, why there was such a delay. “There can be a variety of genuine causes for FIR lodgment to get delayed. Hence the stale demand made in the criminal courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR, the Court has to look into the causes for it and if such causes are not attributable to any effort to concoct a version, no consequence shall be attached to the mere delay in lodging the FIR”.

44.2) In paragraph 81, this Court observed that, in the case of sexual offence, law is more than well settled and it is very common to come across the delay in lodging the F.I.R. In the words of the Hon'ble Supreme Court in the landmark decision in the case of State of Punjab Vs. Gurmit Singh and others13, “In sexual offences delay in lodging of the FIR can be due to variety of reasons, particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Hence, even if there is some delay in lodging FIR in respect of 13 AIR 1996 SC 1393. offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter”.

44.3) Further in paragraph 82, this Court noted that it was further observed by the Hon'ble Supreme Court as under; “In the normal course of human conduct, an unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to others over-powered by a feeling of shame and her natural inclination would be to avoid talking about it to any one, lest the family name and honour is brought into controversy”. As per the Apex Court, the girl in a tradition bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society”.

45) Coming back to the case in hand. The testimony of the PW1- Victim clearly indicates that, when she wanted to go home from Dadar by train, the accused no.2 threatened her at knife point and forced her to sit in a taxi; then she was driven to Pimpri Pada, Goregaon, near a water tank; there, accused stopped the taxi and then took her on foot to the spot of the incident. This conduct of the accused was sufficient to create the needed terror in the mind of the PW1-Victim, as they were five. Even after the commission of rape, twice the accused threatened PW1-Victim of dire consequences if she disclosed the incident of rape to anybody. Therefore, looking at PW1-Victim’s tender age at the time of incident, considering the traumatic impact of the rape and its video recording on her psyche and having regard to her socio-economical plus educational background and in particular, her trustworthy version about the incident, we are of the considered opinion that mere delay in disclosing the incident to the police by PW1-Victim and the consequent delay in the F.I.R., which stand well explained in the evidence, is not sufficient to reject the prosecution case.

46) It is important to note that the accused no.2 was friend of the PW1-Victim and there was no enmity between them. Similarly, there was no dispute or enmity of any kind between PW1-Victim, accused no. 1 and the three JBs. On the contrary, the PW1’s evidence indicates that, there were friendly relations between her and accused No.1. As such, the PW1- Victim had no reason to make a false statement before the Police and then depose falsely on oath before the trial Court to secure a conviction of both the accused for such a serious crime. PW1-Victim was less than 18 years of age at the time of incident. Moreover, there were no love relations between her and accused no.2, prior to the incident. Therefore, it is highly improbable that, she would blame the accused no.1 for rape just because accused no.2 refused the marriage with her. If really PW1-Victim wanted to falsely implicate both the accused along with the JBs in this crime, she could have easily blamed the accused no.2 for the rape instead of accused no.1 as he only had refused the marriage. Moreover, she would not implicate the JBs along with him. Last but not least, the marriage refusal by the accused No.2 was the personal matter between him and PW1- Victim and, police had no business with that. Therefore, it is highly improbable that, being pressurised by media the police would book the five innocent young boys in this serious crime with the help of a young and poor girl. As such, there is no substance in the version of the defence.

47) Upshot of the aforesaid discussion is that, the prosecution has proved that the accused nos.[1] and 2 along with the JBs threatened PW1- Victim at Dadar Station at the point of knife, took her in the taxi to the spot of the incident and then accused no.1raped on her with the aid and assistance of others. Considering the date of birth of the PW1-Victim, it is clear that she was minor at the time of incident. Therefore, the learned trial Court convicted the accused for the offence punishable under Section 366A of I.P.C. Said Section 366A of I.P.C. reads as under: “Section 366A. Procuration of minor girl.- Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine”.

47.1) On plain reading of Section 366A it is clear that, inducement is an essential ingredient to attract the penal liability under the said Section. The evidence of the PW1-Victim clearly indicates that, when she, both accused and others with her came to Elphinstone Road station to return home, the quarrel had occurred there, therefore she and her friends ran in different directions; that this was followed by a telephonic talk between accused nos.[1] and 2; that thereafter, the accused no.2 called them to Dadar. These circumstances are sufficient to presume that, the PW1- Victim was scared due to the quarrel and that she needed someone’s support to return home. Therefore, expecting that accused no.2 and others will take her home safe, she accompanied accused no.1 to Dadar. Thereafter, when she refused to travel home by taxi, the accused no.2 showed her the knife and with the aid of accused no.1 and the JBs, he forcibly driven her to the spot. Thus, it is evident that, first the PW1- Victim was induced by the accused to come to Dadar by impressing upon her that she would be taken back home safe. Then instead of taking her home from Dadar, the accused party caused her to accompany them in the taxi and travel to the spot and immediately thereafter, she was raped by the accused no.1. This is amounting to procuration of the then minor PW1- Victim by accused no.2 with intent to force her to illicit intercourse with accused no.1. We, accordingly, hold that both the accused are liable to be convicted under Section 366A r/w.34 of I.P.C. Looking at the manner in which this crime is committed and the other facts and circumstances, we are disposed to maintain the sentence imposed for the said offence of Section 366A r/w.34 of I.P.C.

48) In so far as the impugned conviction under Sections 292, 500 and 506 II r/w.34 of I.P.C. is concerned, there is more than sufficient evidence to prove the same, we, accordingly hold the same. The impugned conviction under Section 67 of the I.T. Act is also free from error. Similarly, the sentences imposed for the aforestated offences are justifiable, therefore, we refrain from interfering with the same.

49) Since the impugned sentence of imprisonment, i.e., ‘For Life’ is also questioned by learned counsel for both accused, it must be answered. The incident took place in the year 2011 i.e., prior to amendment of Section 376 of I.P.C. Before it is amended in the year 2013, the offence of Section 376 (2) (g) was punishable with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable with fine. There cannot be second opinion that, the accused is liable for punishment which is prescribed by law and in force at the time of commission of the offence. Therefore, learned counsel for both the accused submitted that, looking at the young age of both the accused at the time of commission of the offence, their social, educational and economical background coupled with the fact that both the accused are behind bars since their arrest on 2nd /4th July 2011, the sentence of the life imprisonment may be reduced to the period already undergone in the jail, till date. To record our agreement with this proposition, Mr. Thakur, learned counsel for accused no.2 has relied on the following decisions, which Mr. Dubey learned counsel wants us to consider for accused no.1: Thongam Tarun Singh Vs. The State of Manipur others14. In this case, Appellant No.1 was a police driver and Appellant No.2 was a singer having good reputation; that they were aged about 24-25 years, at the time of the occurrence; that they had no criminal antecedents; that they were from backward area; that their conduct in the Jail (post conviction) was very good and they were participating in the sports/garden and other activities of the jail. In view thereof, their sentence of imprisonment of 15 years under Section 376 (2) (g) of the I.P.C. for raping a girl aged 16 years was reduced to 8 years. Bavo Vs. State of Gujarat15. In this case, the accused was awarded life imprisonment under Section 376 (2) (f) of I.P.C. for raping a girl aged 7 years. However, the Appellant was aged 18/19 years at the time of incident. The incident had occurred nearly 10 years ago. The Appellant had already served nearly 10 years of imprisonment. Considering these facts, his sentence reduced to RI for 10 years with the fine of Rs.1,000/- with default clause. Manoj Mishra Vs. The State of Uttar Pradesh16. In this case, the victim girl aged 14 years was taken away by 3 accused. The Appellant subjected the victim to sexual intercourse for 4 months. As a result, she became pregnant. The Appellant was convicted and sentenced to 20 years RI with fine of Rs.25,000/− for the offence under Section 376−D IPC. Additionally, he was convicted for the offences punishable under Sections 363, 366 and 506 of I.P.C. and under Section 4 of POCSO Act, however, he was sentenced to lesser imprisonment and fine for these offences. 14 AIR 2019 SC 2456. 15 AIR 2012 SC 979. 16 AIR 2021 SC 5032. The crime was committed prior to the amendment of Section

376. Therefore, the conviction was modified to pre-amended Section 376 of I.P.C. which was punishable with rigorous imprisonment but not less than seven years and extendable to imprisonment for life and with fine. The Appellant had no criminal antecedents. He was a father of 5 children and the eldest son was more than 18 years. There was no scope to apprehend that the Appellant would indulge in similar acts in the future. The Appellant was in custody for more than 08 years. Hence, the sentence was reduced to the period undergone. Pradip Vs. The State of Maharashtra17. In this case, the Appellant was convicted under Section 376 (2) (i) of I.P.C. and under Sections 4 and 6 of the POCSO Act, for raping a minor girl aged 7 years. He was sentenced to suffer imprisonment for life, which shall mean imprisonment for the remainder of his natural life and to pay fine of Rs.25,000/ under Section376 (2) (i) of I.P.C. However, the Appellant was a young boy of 20 years, shouldering responsibility of his widowed sister and her son; that he had no father. He was in jail but for the period near about 4 years 2 months, approximately. Therefore, it is held that, if he has been incarcerated for considerable period, that would teach him a lesson and serve the purpose. Therefore, maintain the conviction, the Court reduced the Appellant’s to rigorous imprisonment for 14 years with fine along with default clause.

50) In Mohd. Firoz Vs. State of Madhya Pradesh18, the Hon’ble Supreme Court commuted the sentence of death of the Appellant for the sentence of imprisonment for life, for the offence punishable under 17 2022(4) BomCR (Cri) 631.

Section 302 of I.P.C. and reduced the imprisonment for the remainder of Appellant’s natural life to the imprisonment for a period of twenty years, for the offence under section 376A of I.P.C. In this regard, while balancing the scales of retributive justice and restorative justice, the Hon’ble Supreme Court held as under: “61. … One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. …”.

51) Certainly, always the imposition of appropriate sentences is an issue of cautiousness. The Court has to consider variety of circumstances namely-manner of crime, atrocities committed by the accused, victims condition, age of the accused and other related factors. In the case in hand, both the accused are in jail since their arrest on 2nd /4th July 2011. Even if both the accused having convicted for the offence of rape, the role of accused no.2 is limited to recording the video of the rape. Having regard to this fact, we deem it appropriate to sentence the accused no.2 to suffer an imprisonment till the period he has undergone in jail.

51.1) However, considering the manner in which accused no.1 raped the then minor PW1-Victim, that said incident become viral in the media and the brutal impact on the body, mind and soul of the PW1-Victim, we consider it just to uphold the sentence of life imprisonment recorded against the accused no.1.

52) In view thereof, the Appeal of accused no.2 deserves to be partly allowed and the Appeal of accused no.1 is liable to be dismissed. Hence, we pass the following Order: - ORDER i) Criminal Appeal No. 575 of 2014 is partly allowed. ii) Criminal Appeal No. 990 of 2014 is dismissed. iii) The impugned Judgment and Order dated 18th and 23rd January 2014, passed by the learned Additional Sessions Judge at Dindoshi, Mumbai in Sessions Case No. 184 of 2011 is upheld to the extent of the conviction and sentence of Appellants Rajesh Sangamlal Jaiswal (accused no.2) and Mr. Suraj Nepali @ Suraj Lalsingh Chand (accused no.1) for the charge of the offences punishable under Sections 366A, 292, 500 and 506 (II) and r/w 34 of the Indian Penal Code, 1860 and the conviction and sentence of the Appellant Rajesh Sangamlal Jaiswal for the charge of the offence punishable under Section 67 of the Information Technology Act, 2000. iv) The impugned conviction of the Appellants Rajesh Sangamlal Jaiswal and Mr. Suraj Nepali @ Suraj Lalsingh Chand for the charge of the offence punishable under 376 (2) (g) of the Indian Penal Code is upheld. However, the impugned sentence of the Appellant Rajesh Sangamlal Jaiswal under said Section 376 (2) (g) the Indian Penal Code is set aside. Instead, the Appellant Rajesh Sangamlal Jaiswal is sentenced to suffer rigorous imprisonment till the period he has undergone in the jail. v) The sentence of life imprisonment of the Appellant Suraj Nepali @ Suraj Lalsingh Chand for the charge of the offence punishable under 376 (2) (g) of the Indian Penal Code, is upheld. vi) Both Appellants are in the jail since 2nd /4th July, 2011, therefore, the benefit of set-off be given to them. vii) The Appellant Rajesh Sangamlal Jaiswal shall be released forthwith if not required to be detained in any other case/crime. viii) Appeals are disposed of in the aforesaid terms.

53) All concerned to act on the authenticated copy of this Judgment and Order.

SHYAM C. CHANDAK, J. REVATI MOHITE DERE, J.