Prakash Bharat Aware and Vaibhav @ Bhau Ankush Jadhav v. The State of Maharashtra

2 Appellants have questioned correctness of Judgment and Order dated 25th July, 2015 passed by the learned Special Judge, Barshi in Special Case No.28 of 2014 (Old Special Case No.40 of 2013), convicting the Appellants under Section 376D of the Indian Penal Code (for short, “the IPC”) and is sentenced to suffer rigorous imprisonment for life, which mean imprisonment for remainder until natural life and to pay fine of Rs.10,000/each and under Section 3(2)(v) read with Section 6 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, “the SCST Act”) and is sentenced to suffer imprisonment for life and to pay fine amount of Rs.5,000/- each. Trial Court has also directed and prescribed in default sentence for non-payment of fine and has further directed both the sentences shall run concurrently.

3 Heard Mr. Agandsurve, learned Advocate appearing for the Appellants. Mr. Hulke learned APP for Respondent No.1-State. Perused entire record.

4 Shorn of unnecessary details, it is the prosecution case that, on 3rd September, 2013 in the evening at about 7.30 p.m. when the prosecutrix was returning from her job and was passing from the embankment of river Bhogavati, Accused No.1 held her hand and pulled her under the embankment of river near bushes of Chillari. Prosecutrix tried to resist, however he made her to fall on the ground and committed forcible sexual intercourse with her. Prosecutrix shouted for help however, as nobody was nearby, her cries for help were unnoticed by anybody. After committing rape upon the prosecutrix, Accused No.1 called Accused Nos.[2] and 3 and instigated them to commit rape upon the prosecutrix. It is the further prosecution case that, Accused Nos.[2] and 3 were concealing themselves behind the said Chillari bushes. Accused No.2 came forward, to whom the prosecutrix resisted and tried to rescue herself from his clutches however, Accused No.3 foiled her attempts and thereafter Accused No.2 committed rape on her. It is alleged that, Accused No.3 intimidated and threatened her that, if she resists, she would be killed. That, Accused No.3 thus abetted and facilitated other two Appellants in commission of the said offence against the prosecutrix.

5 Prosecutrix thereafter rushed to her home and narrated the said incidence to her mother (PW-4) and father. Prosecutrix along with her mother thereafter immediately approached to the Vairag Police Station, Taluka Barshi, District Solapur and lodged crime bearing No.160 of 2013 under the aforestated Sections. Criminal law was thereafter set into motion. Prosecutrix was immediately referred to Dr. Gurudev S. Thengal (PW-2) who at the first instance examined her and issued Medical Certificate (Exh-30). He also prepared necessary medical case papers (Exh-31). Prosecutrix was thereafter referred to a Forensic Medicine Expert namely Dr. Santosh B. Bhoi (PW-3) who was then serving in Civil Hospital, Solapur. He noticed following injuries on the person of prosecutrix:- “1) Abrasion present over back on right scapular region, size 1 cm x 5 cm. Red scab present.

2) Abrasion present over back of left scapular region, size 1 cm x 1 cm red scab present. He opined that, those injuries were simple, possible due to hard and blunt object and caused within 24 hours before examination of prosecutrix. He accordingly issued Medical Certificate (Exh-36). He opined that, the aforestated injuries were possible while committing rape on ground. During the course of investigation, the clothes of prosecutrix were seized by effecting panchnama (Exh-39) in presence of panch witness Kishor D. Sali (PW-5). Accused No.1-Prakash Aware, on 6th September, 2013 when was in the custody of police expressed his desire to show the spot of incident. He led the police to the spot of incident and spot panchanama (Exh-43) was accordingly drawn in presence of Amol M. Dolse (PW-6).

6 After receipt of necessary reports from the Forensic Science Laboratory and completion of investigation, the investigating agency submitted charge-sheet in the Court of Judicial Magistrate First Class, Barshi. Learned Magistrate, took cognizance of the said offence and committed the said case to the Court of Sessions as contemplated under Section 209 of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C.”) as the offence alleged against the Appellants is exclusively triable by the Court of Sessions. Learned Judge of the trial Court initially framed charge against the Appellants below Exh-2 on 11th February, 2014. As the said charge was defective and was requiring modification thereof, the successor-in-title of the trial Court modified it and framed a precise charge below Exh-59. The contents of the said charge were read over and explained to the Appellants in vernacular language to which they denied, pleaded not guilty and claimed to be tried. The defence of the Appellants was of total denial and false implication.

7 From the line of cross-examination of material witnesses, it can be discerned that, the Appellants put forth theory of false implication due to political enmity in their village, at the behest of the opponent group; as the prosecutrix is a member of it, the opponent group has put forth her to implicate Appellants in the present crime of such heinous nature. In their defence, the Appellants examined Smt. Rita R. Lokhande (DW-1) who was then working in Bhagwati Children Home, Village Tadvale, where the prosecutrix claimed that she was working. Trial Court after recording the evidence of the witnesses and hearing the learned Advocates for the Appellants and the Public Prosecutor for the State has convicted and sentenced them by its impugned Judgment and Order.

8 Mr. Agandsurve, learned Advocate for the Appellants submitted that, Medical Reports submitted by Dr. Gurudev S. Thengal (PW-

2) suggested that, the prosecutrix was habitual to the sexual intercourse. That, the medical evidence is silent about commission of rape by more than one person on the date and time of incident, as alleged by the prosecutrix. He further submitted that, there were two political groups in the village Tadvale, Taluka Barshi, District Solapur and the prosecutrix and her mother were belonging to the opponent group of the Appellants. That, at the instance of leaders of the opponent group, the prosecutrix and her mother have falsely implicated Appellants in the present crime. He submitted that, the prosecutrix was an accused in Sessions Case No.4 of 2018 for an offence punishable under Sections 366 and 376 read with Section 34 of the IPC and was convicted by the trial Court for the said offences and was sentenced to suffer rigorous imprisonment for seven years. He submitted that, thus the character of prosecutrix is questionable and not up to the mark to believe her testimony blindly. He submitted that, the Appellants have been sentenced to imprisonment for life as contemplated under Section 376D of the IPC which according to him is a severe and harsh punishment. He further submitted that, if the Court is not inclined to allow the present Appeal in that event, the sentence imposed upon the Appellants of life imprisonment be commuted to rigorous imprisonment for 20 years as the minimum sentence prescribed under Section 376D of the IPC. He submitted that, the provisions of the SCST Act have been applied to the present crime only because of the fact that, the prosecutrix is belonging to Scheduled Tribe and none else. He therefore prayed that, present Appeal may be allowed by setting aside the impugned Judgment and Order or in the alternative, the sentence imposed upon the Appellants be reduced to 20 years jail term.

9 Per contra, learned APP vehemently opposed the Appeal. He submitted that, the prosecutrix along with her mother immediately reported the ordeal faced by her to the police without any delay. Their testimonies in examination-in-chief have not been shaken in their elaborate crossexamination. That, the opinion expressed by Dr. Santosh B. Bhoi (PW-3) supports the contention of prosecutrix regarding forceful sexual intercourse by Appellant Nos.[1] and 2. He submitted that, record discloses that the Appellants in a pre-planned manner committed gang rape upon the prosecutrix when she was returning from her duty and therefore no leniency be shown to the Appellants and the conviction and sentence imposed upon them by the trial Court be upheld. He therefore prayed that, the present Appeal may be dismissed.

10 Prosecutrix (PW-1) in her testimony has deposed that, on the date of incident, she was returning from her work, the children home. She was walking to her house from the bank of river. It was about 7.30 p.m.. Accused No.1 tried to drew her attention by gestures, however she did not respond to him and proceeded to her house. At that time, Accused No.1 held her hand and dragged her in the bank of river against her wish and initially tried to outrage her modesty. Prosecutrix resisted him, however Accused No.1 did not budge to it. He forcefully removed her clothes and committed rape on her. Prosecutrix cried for help however, nobody came for her rescue. After Accused No.1 committed an act as contemplated under Section 376 of the IPC, he called Accused Nos.[2] and 3. At that relevant time, prosecutrix tried to rescue herself from the clutches of Accused Nos.[2] and 3 and tried to run away from the scene of offence, however Accused No.2 obstructed her way and again caused her to fall on the ground and committed rape. Accused No.2 also threatened prosecutrix with a dire consequences if she discloses this fact to anybody. Accused No.3 assisted Accused No.2 actively in committing the said crime against the prosecutrix. Prosecutrix thereafter immediately rushed to her home and told the ordeal faced by her to her mother. Mother took her to Vairag Police Station and lodged first information report against the Appellants. She has categorically stated that, she is belonging to Hindu Mahar caste, a Scheduled Caste and the Appellants belonging to Maratha Community.

11 In her elaborate cross-examination by the Appellants, nothing beneficial to them has been brought on record which may discredit the examination-in-chief of the prosecutrix. In her cross-examination, the Appellants have given suggestion that, due to the Grampanchayat Election of the said village, at the behest of opponent group they have been falsely implicated in the present crime. The said suggestion has been denied by the Prosecutrix. Various other suggestions given by the defence to the Prosecutrix have been denied by her. At the cost of repetition, it is to be noted here that, her deposition in chief before the Court regarding offences committed by Appellants under Section 376D of the IPC has not at all been shaken by the defence.

12 Smt. Laxmi S. Davane (PW-4) is the mother of prosecutrix. She has deposed that, on the date of incident at about 7.30 p.m. prosecutrix came home crying and narrated the ordeal faced by her at the hands of Appellants. She has also deposed that, Accused Nos.[2] and 3 administered threat of dire consequences if she discloses this fact to anybody. In her lengthy cross-examination, nothing beneficial to the Appellants has been extracted and the fact that after returning home immediately prosecutrix narrated her ordeal to her mother has not at all been disturbed.

13 Dr. Santosh Bhoi (PW-3) is a Forensic Medicine Expert. He was serving in Civil Hospital, Solapur on 4th September, 2013. Prosecutrix was referred to him for expert opinion. He found injuries on the person of prosecutrix as noted in paragraph No.5 hereinabove. He has deposed that, the said injuries were simple, possible by hard and blunt object and caused within 24 hours prior to examining the prosecutrix. He has proved the medical report (Exh-36). He categorically deposed that, above injuries were possible while committing the rape on ground.