[ad_1]
Bombay High Court
Jobi Ashokan Welythan vs State Of Maharashtra, Thr. P.S.O. P.S. … on 6 May, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-NAG:4873-DB
1 cr-appeal-336-16+4.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NOS. 336/2016, 352/2016, 325/2016 & 346/2016
CRIMINAL APPEAL NO. 336/2016
1. Maksud Sheikh Gaffur Sheikh,
Aged about 46 years, Occ. Labourer
R/o. Samta Colony, Tukum,
Chandrapur, District Chandrapur.
2. Sheikh Kadir Sheikh Jakir,
Aged about 32 years, Occ. Auto Driver,
R/o. Tukum Talav, Near Usmaniya Masjid,
Chandrapur, District Chandrapur. . . . APPELLANTS
// V E R S U S //
State of Maharashtra through
Police Station Officer, Ramnagar Police Station,
Chandrapur. . . . RESPONDENT
---------------------------------------------------------------------------------------------------
Shri R. K. Tiwari, Advocate for appellant.
Shri S. S. Doifode, APP for respondent/State.
---------------------------------------------------------------------------------------------------
WITH
CRIMINAL APPEAL NO. 352/2016
Wasim Khan S/o. Ajim Khan,
Aged about 31 years, Occ. Mechanic,
R/o. Sarkar Nagar, Near Khanke Wadi,
Chandrapur, District Chandrapur.
(IN JAIL) . . . APPELLANT
// V E R S U S //
The State of Maharashtra through
Police Station Officer, Police Station Ramnagar,
District Chandrapur. . . . RESPONDENT
2 cr-appeal-336-16+4.odt
---------------------------------------------------------------------------------------------------
Shri Arjun V. Bobde a/w. Ms. Shubhangi Jadhao, Advocate for
appellant.
Shri S. S. Doifode, APP for respondent/State.
---------------------------------------------------------------------------------------------------
WITH
CRIMINAL APPEAL NO. 325/2016
Jobi Ashokan Welythan,
Age 35 years, Occ. Private,
R/o. Vinayak Apartment,
Urja Nagar Ward, Chandrapur,
Dist. Chandrapur. . . . APPELLANT
// V E R S U S //
State of Maharashtra through its
Police Station Officer, Police Station, Ramnagar,
Chandrapur, Dist. Chandrapur. . . . RESPONDENT
---------------------------------------------------------------------------------------------------
Shri R. R. Vyas, Advocate for appellant.
Shri S. S. Doifode, APP for respondent/State.
---------------------------------------------------------------------------------------------------
AND
CRIMINAL APPEAL NO. 346/2016
Sirajkhan Pathan @ Raja S/o. Shahadat Khan
Pathan, Aged about 36 years,
Occ. Water Filter Plant,
R/o. Hanuman Khidki, Dadmahal Ward,
Chandrapur, Dist. Chandrapur. . . . APPELLANT
// V E R S U S //
The State of Maharashtra through
Police Station Officer, Police Station, Ramnagar,
District Chandrapur. . . . RESPONDENT
---------------------------------------------------------------------------------------------------
Shri R. M. Daga, Advocate for appellant.
Shri S. S. Doifode, APP for respondent/State.
---------------------------------------------------------------------------------------------------
3 cr-appeal-336-16+4.odt
CORAM :- NITIN B. SURYAWANSHI &
M. W. CHANDWANI, JJ.
RESERVED ON :- 28.04.2025
PRONOUNCED ON :- 06.05.2025
JUDGMENT (PER: M. W. CHANDWANI, J.):
–
These four appeals have been filed by the convicts
challenging the conviction recorded by the learned Additional Sessions
Judge, Chandrapur in Sessions Case No. 22/2015 against the
appellants in these appeals under different Sections of the Indian Penal
Code (hereinafter referred to as “the IPC“) and the Information
Technology Act, 2000 (for short, “the IT Act“). Since, the appeals are
arising out of the same judgment of conviction, therefore, they are
being disposed of analogously. The learned Additional Sessions Judge,
Chandrapur, by the impugned judgment, convicted the appellants in all
the appeals and sentenced them as follows :-
Name of the Convicted under Sections Punishment Fine to be
appellants Awarded paid
Maksud Sheikh Gaffur Section 506-II of IPC R. I. For 7 Rs. 3000/-
Sheikh years
Section 450 r/w. Section 34, 149, 109, R. I. For 10 Rs. 4000/-
114 of IPC years
Section 326 r/w. Section 34, 149, 109, R. I. For 10 Rs. 4000/-
114 of IPC years
Section 66E of the Information R. I. For 3 Rs. 1000/-
Technology Act, 2000 r/w. Sections 34, years
149, 109, 114 of IPC.
Section 452 of IPC r/w. Section 34, 149, R. I. For 7 Rs. 3000/-
109 and 114 of IPC years
4 cr-appeal-336-16+4.odt
Section 354A r/w. Section 34, 109, 114 R.I. for 3 Rs. 1000/-
of IPC years
Section 354B r/w. Section 34, 149, 109 R. I. For 3 Rs.1000/-
and 114 of IPC years Wasim Khan Ajim Section 450 r/w. Section 34, 149, 109, R. I. For 10 Rs. 4000/- Khan 114 of IPC years
Section 326 r/w. Section 34, 149, 109, R. I. For 10 Rs. 4000/-
114 of IPC years
Section 66E of the Information R. I. For 3 Rs. 1000/-
Technology Act, 2000 r/w. Sections 34, years
149, 109, 114 of IPC.
Section 452 of IPC r/w. Section 34, 149, R. I. For 7 Rs. 3000/-
109 and 114 of IPC years
Section 366 r/w. Section Section 34, R. I. For 10 Rs. 4000/-
109, 114 of the IPC years Section 354A r/w. Section 34, 109, 114 R.I. for 3 Rs. 1000/- of IPC years
Section 354B r/w. Section 34, 149, 109 R. I. For 3 Rs.1000/-
and 114 of IPC years Section 354C of the IPC R.I. for 3 Rs. 1000/- years
Section 376D r/w. Section 34, 109, 114 R. I. For life Rs.50000/
of IPC (remainder –
of natural
life)
Section 506-II r/w. Section 34, 109, 114 R. I. For 7 Rs. 3000/-
of IPC years
Section 307 r/w. Section 34, 109, 114 of R. I. For life Rs. 5000/-
IPC
Section 394 r/w. Section 34, 109, 114 of R. I. For 10 Rs. 4000/-
IPC years Section 201 of IPC R.I. For 21 Rs. 750/- months
Sheikh Kadir Sheikh Section 450 r/w. Section 34, 149, 109, R. I. For 10 Rs. 4000/-
Jakir 114 of IPC years
Section 326 r/w. Section 34, 149, 109, R. I. For 10 Rs. 4000/-
114 of IPC years
Section 66E of the Information R. I. For 3 Rs. 1000/-
Technology Act, 2000 r/w. Sections 34, years
149, 109, 114 of IPC.
Section 452 of IPC r/w. Section 34, 149, R. I. For 7 Rs. 3000/-
109 and 114 of IPC years
Section 366 r/w. Section Section 34, R. I. For 10 Rs. 4000/-
109, 114 of the IPC years 5 cr-appeal-336-16+4.odt Section 354A r/w. Section 34, 109, 114 R.I. for 3 Rs. 1000/- of IPC years
Section 354B r/w. Section 34, 149, 109 R. I. For 3 Rs.1000/-
and 114 of IPC years
Section 376D r/w. Section 34, 109, 114 R. I. For life Rs.50000/
of IPC (remainder –
of natural
life)
Section 506-II r/w. Section 34, 109, 114 R. I. For 7 Rs. 3000/-
of IPC years
Section 307 r/w. Section 34, 109, 114 of R. I. For life Rs. 5000/-
IPC
Section 394 r/w. Section 34, 109, 114 of R. I. For 10 Rs. 4000/-
IPC years
Siraj Khan Pathan @ Section 450 r/w. Section 34, 149, 109, R. I. For 10 Rs. 4000/-
Raja Shaadatkhan 114 of IPC years Pathan
Section 326 r/w. Section 34, 149, 109, R. I. For 10 Rs. 4000/-
114 of IPC years
Section 66E of the Information R. I. For 3 Rs. 1000/-
Technology Act, 2000 r/w. Sections 34, years
149, 109, 114 of IPC.
Section 452 of IPC r/w. Section 34, 149, R. I. For 7 Rs. 3000/-
109 and 114 of IPC years
Section 354B r/w. Section 34, 149, 109 R. I. For 3 Rs.1000/-
and 114 of IPC years Jobi Ashokan Section 212 r/w. Section 34, 109, 114 of R. I. For 3 Rs. 1000/- Welythan IPC years
Salim Khan Pathan @ Section 212 r/w. Section 34, 109, 114 of R. I. For 3 Rs. 1000/-
Goldi Karim Khan IPC years Pathan (deceased) PROSECUTION'S CASE
2. The prosecution’s case can be culled out as under:-
i) The prosecutrix, estranged wife of one Afroz Pathan, due
to irreconcilable differences with her husband, started residing in a
live-in-relationship with Dinesh (PW2) in a rented room owned by
6 cr-appeal-336-16+4.odtShabbir. Knowing this, accused- Wasim and Kadir had been to the
house of the prosecutrix in absence of Dinesh and questioned her as to
why being a Muslim girl, she is residing with Dinesh, a Hindu. They
insisted her to have a relationship with them instead of Dinesh. They
tied both the hands of the prosecutrix. When Dinesh arrived, Wasim
and Kadir left the house after threatening the prosecutrix.
ii) The genesis of the incident dated 05.11.2014 and dated
06.11.2014 is an altercation between Maksud, the brother of Shabbir
and the prosecutrix on account of use of water for washing their
“Activa” vehicle. As a result of use of filthy language by Maksud against
the prosecutrix, he received two slaps from her. Maksud continued
abusing the prosecutrix as well as Dinesh. Landlord- Shabbir pacified
them. The prosecutrix and Dinesh went inside the room. Thereafter,
Maksud banged the door and when Dinesh opened the door, Maksud
who had an Axe in his hand, tried to assault Dinesh. Dinesh gave him
a jolt, resulting into Maksud falling on the ground. After some time,
Maksud called Wasim and Kadir. They barged into the room of the
prosecutrix. Whereas, Siraj and a juvenile in conflict with law,
Wasim’s other colleague were standing outside the room. Kadir
assaulted Dinesh on his head and on other parts of the body with a
Baton whereas, Wasim slapped the prosecutrix. Dinesh sustained
injuries on his head and legs. Meanwhile, Rakesh (PW-3), a common
7 cr-appeal-336-16+4.odt
friend of the prosecutrix and Dinesh arrived there. He was also beaten
up by Kadir. Liquor was brought there. Wasim made the prosecutrix
and Dinesh drink the liquor and smoke cigarettes. Wasim asked the
prosecutrix and Rakesh to strip themselves. When Rakesh protested,
Kadir assaulted him with a knife. Ultimately, they obeyed. They were
made to kiss each other and to get into various compromising positions
in naked condition. Wasim took photos and recorded videos of those
poses in his mobile phone. They allowed Rakesh to go home. Maksud
was asked to leave. Thereafter, Wasim, Kadir and the Juvenile in
conflict with law took the prosecutrix and Dinesh in an Indica Car to
Nandori Railway track beyond Bhadrawati village. Dinesh was put on
the Railway track twice to get run over by a train. He was also beaten
there by means of an iron rod. Somehow, he saved himself and fled
away from there. However, the prosecutrix was taken away by Wasim,
Kadir and the juvenile in the said vehicle. All three of them committed
rape on her one by one at different places. Lastly, she was taken to
Shegaon village. When they got to know that the Police was searching
for them, they took the prosecutrix into a jungle. Initially, they decided
to kill the prosecutrix however, they left the prosecutrix at Vidya Vihar
Convent.
iii) The prosecutrix went to her house and after that to the
Police Station and lodged the report. Meanwhile, Dinesh after
8 cr-appeal-336-16+4.odt
rescuing himself had reached the Police Station in an injured condition
and he was sent to the hospital for treatment. On complaint of the
prosecutrix, law was set into motion and the offences under Sections
450, 506-II, 326, 452, 366, 354-A, 354-B, 354-C, 376-B, 426, 307, 394,
201 and 212 r/w. Section 34 and 149 of the IPC and Sections 67 and
67-A of the Information Technology Act, 2000 r/w. Sections 109 and
114 of the IPC came to be registered against the appellants and the
juvenile in conflict with law. Maksud, Wasim, Kadir, Siraj, Salim and
Jobi were arrested and after completion of the investigation, charge-
sheet came to be filed.
iv) The appellants were charged for commission of the above
referred offences. They abjured the charge and claimed to be tried. The
prosecution in all examined 24 witnesses. Whereas, Maksud examined
landlord- Shabbir Gaffur Sheikh (DW-1) in his defence. The Trial Court
on conclusion of the trial found the appellants guilty under different
offences and sentenced them for the same as referred above in para
no. 2. Feeling aggrieved with the judgment of conviction, these
appeals came to be filed.
EVIDENCE
3. Before appreciating the arguments advanced by the
learned counsel appearing on behalf of the respective appellants and
9 cr-appeal-336-16+4.odt
the learned APP appearing on behalf of the State in different appeals,
we intend to see what has been brought on record by the prosecution
to prove the charges against the appellants. We propose to categorize
the witnesses examined by the prosecution and the evidence adduced
in the following four categories:-
i) Eye-witnesses/victims; ii) Medical Evidence; iii) Recovery witnesses; iv) Other witnesses; v) Forensic Evidence; vi) Identification of the accused persons and vii) Electronic evidence EYE-WITNESSES/VICTIMS
4. The prosecutrix, a star witness of the prosecution has
deposed that in the month of October-2014, Wasim alongwith Kadir
had been to the house of the prosecutrix. They tied her hands and
Wasim reiterated his request to leave Dinesh and maintain physical
relations with him instead. However, due to the arrival of Dinesh, they
left after threatening both of them. With regard to the incident dated
05.11.2014, she deposed that when she was washing the vehicle with
the help of Dinesh, Maksud switched the water pump off and as a
result of that, an altercation took place between them. Maksud abused
10 cr-appeal-336-16+4.odt
her saying “Tu Bhadkhao Hai, To Bin Shadi Kiye Rahti hai”. Therefore,
she slapped him. Thereafter, Maksud brought an Axe and tried to hit
Dinesh but Dinesh pushed him and Maksud fell down. Maksud then
made a call to Wasim from his mobile phone and asked him to come.
Wasim and Kadir alongwith the other accused persons came there and
barged into the house of the prosecutrix. Kadir unleashed a blow of
Bamboo stick on the head of Dinesh. The prosecutrix made a call to
Rakesh who then reached there. They beat Dinesh and Rakesh
mercilessly, whereas Wasim slapped the prosecutrix. Wasim asked the
prosecutrix to have physical relations with Rakesh. Liquor was brought
there. They removed the clothes of the prosecutrix and Rakesh.
Rakesh told that he considers the prosecutrix as his sister. They made
Dinesh, Rakesh and the prosecutrix drink liquor and also beat Rakesh.
Wasim was recording videos of the prosecutrix and Rakesh while they
were asked to make different poses in compromising positions. When
Rakesh refused to remove his clothes, Wasim beat him by means of a
stick. Eventually, they allowed Rakesh to go home. They brought the
prosecutrix and Dinesh out of the house, lifted injured Dinesh and put
him in the Indica car. Wasim, Kadir and the juvenile in conflict with
law took Dinesh and the prosecutrix towards Nandori Bifurcation.
They put Dinesh on the Railway track and the prosecutrix was taken to
Nagpur Road near a Dhaba. When Wasim and Kadir alighted from the
11 cr-appeal-336-16+4.odt
vehicle, the juvenile in conflict with law made physical relations with
the prosecutrix. Thereafter, they took her into a jungle. At about 4:30
am, they made her descend from the vehicle and Wasim committed
sexual intercourse with her. Thereafter, Kadir repeated the same act.
They took the prosecutrix to a village called small Shegaon and
thereafter, towards Tadoba Road. At about 9:00 to 9:30 am, she was
made to get down from the vehicle and Wasim and Kadir committed
sexual intercourse with her. Wasim and Kadir had a long knife and a
rod and they were discussing whether to kill the prosecutrix or let her
go. When they got to know that the Police had found Dinesh, Wasim
and Kadir alighted from the vehicle. They took the knife and left the
rod in the vehicle. Kadir left the prosecutrix near Vidya Vihar Convent.
5. This witness on 17.11.2014 identified the juvenile in
conflict with law and on 25.11.2014 she identified accused- Kadir and
Siraj respectively. She further deposed that she sustained injuries
below her right eye and right elbow, whereas Dinesh sustained injuries
on his head and legs and Rakesh suffered injuries on his legs and
hands.
6. Dinesh (PW2) is an injured and also an eye-witness. This
witness also deposed on the same lines except the incident of October-
2014. His evidence regarding the incident with Maksud is on the same
12 cr-appeal-336-16+4.odt
lines as that of the prosecutrix but in detail. According to him, there
was an altercation between the prosecutrix and accused Maksud on
account of washing of the vehicle. Maksud was worried about the
electricity bill due to usage of the boring for extracting water from the
bore. On this count, he started hurling abuses and even assaulted the
prosecutrix. Shabbir tried to pacify Maksud but still, he abused the
prosecutrix in filthy language and therefore, the prosecutrix slapped
him. He even deposed about Maksud bringing an Axe in order to
assault him. About the main incident, he also deposed that accused
Maksud, Wasim and Kadir alongwith one more person entered into the
house of the prosecutrix. Kadir banged the mobile phone of this
witness on the floor to break it and removed its SIM to take it with
him. Kadir gave a blow of the Baton on his head and he sat on the Cot.
Kadir continued to beat this witness with a Baton. At that time,
Rakesh came there. He was made to sit between this witness and the
prosecutrix. Wasim forcibly made them drink liquor. Wasim asked
Rakesh and the prosecutrix to remove their clothes. When Rakesh
refused, he was given a blow on his legs. Kadir also slapped him and
the prosecutrix. Wasim asked Maksud to go out. It appears from the
version of this witness that he was made to drink a full bottle of liquor
and was feeling dizzy. Rakesh was also assaulted with a knife and was
made to kiss the prosecutrix on the cheek and lips. Various types of
13 cr-appeal-336-16+4.odt
poses of the two of them were snapped and recorded in the mobile
phone. Wasim, Kadir and an 18 year old boy lifted him and the
prosecutrix and put her in the vehicle on the middle seat whereas, this
witness was put on the back seat. At the instance of Wasim and Kadir,
the juvenile removed the wallet of this witness containing Rs.3,000/-
and kept it with him. They took them to Chandrapur- Bhadrawati road
and after the toll plaza at Nandori, they alighted from the vehicle.
They lifted this witness from the vehicle and made him lay on the
Railway track and waited for the train for 15-20 minutes. When this
witness tried to hide himself in the bushes, Kadir and the juvenile
pulled him out of the bushes. The juvenile gave two blows of the iron
pipe on the backside of his head and they again pulled him over the
Railway track and made him lay there. They kept his neck on the track
and gave a blow of the pipe on his head. For the next 15 minutes, he
was laying there. A train came and he turned turtle. He then went to
the opposite side of the track, started walking through the hidden road
towards a field and went to village Vislon. After borrowing a mobile
phone from a Railway personnel, he called his brother-in-law who
reached there after 1½ to 2 hours and took him to Ramnagar Police
Station, Chandrapur from where he was referred for medical
examination to the Government Hospital. Thereafter, he was admitted
14 cr-appeal-336-16+4.odt
to the ICU of a private hospital for two days. He also identified the
juvenile and two other accused persons.
7. Rakesh Hiraman Bhovte (PW3), another injured has also
testified that on a call made by the prosecutrix, he went to the house of
the prosecutrix. A boy was standing outside her house. He went
inside the room. A man and a boy, whom he later identified as Kadir
and Maksud were present there. Kadir unleashed a blow of the baton
on his hand and Maksud pushed him. Kadir again gave a blow of the
Baton on his leg and Wasim asked him to remove his clothes. When he
denied, Kadir gave a knife blow on his hand. Wasim made him
remove his clothes and kiss the prosecutrix on her lips. Before that,
Wasim had beaten the prosecutrix and made her drink liquor and
remove her clothes. At the time when the kissing was taking place,
Wasim took photos and videos on his mobile. Wasim asked this
witness to have sexual intercourse with the prosecutrix. He denied
and then Wasim made the prosecutrix put her face on his private part.
Dinesh was badly beaten up and was made to drink liquor forcibly.
Thereafter, Kadir pushed him outside of the room and he was directed
to go home. Before that, Kadir had removed the battery and the SIM
from the mobile phone of this witness. On the next day, he stated the
incident to Vijay Gurnule.
15 cr-appeal-336-16+4.odt
MEDICAL EVIDENCE
8. Dr. Dipti Shrirame (PW10), who examined the prosecutrix
has deposed that she examined her and found that blood stains were
present over the right and left sleeves of her shirt. She found the
following injuries over her person:-
1) Abrasion over right elbow approximate 2 X 2 cm well defined,
reddish brown in colour, swelling was present and non grievous.
2) Contusion, below right eye, size approx. 3 X 2 cm, margin is well
defined, colour reddish brown swelling was present, non-grievous.
3) She found the injuries over her person to be inflicted within 24
hours and they were to heal within seven days.
4) On genital examination she found that her hymen was torn.
There was an old injury over her hymen. Two fingers were easily
inserted. Overall findings were that she was subjected to sexual
intercourse.
5) She obtained her sample of blood, vaginal swab, pubic hair for
chemical analysis. She was asked some questions as per Exh.157. On
questionnaires put to her, this witness could not say whether she was
subjected to gang rape. She did not find injuries over her private
parts. She did not find any evidence related to forcible sexual
intercourse.
16 cr-appeal-336-16+4.odt
9. Dr. Morarji Kusnake (PW-15) examined Rakesh (PW3) and
accused Wasim and Kadir. He found following injuries on the person
of Rakesh (PW3) :-
i) Abrasion over left leg down the knee admeasuring 5 cm X 4 cm.
ii) Abrasion over left shoulder admeasuring 4 cm X 4 cm.
iii) Abrasion over fingers of both palms admeasuring 1 cm X 1 cm.
10. He opined that the said injuries might have been inflicted
using a hard and blunt object. No injury was found on the person of
Kadir however, Wasim suffered an abrasion over his left scapula
admeasuring 5 cm X 5 cm. He further deposed that accused Wasim
and Kadir were capable of sexual intercourse.
11. Dr. Digambar Rathod (PW20), a Medical Officer attached
to Civil Hospital, Chandrapur examined Dinesh (PW2) on 06.11.2014,
found the following injuries on his person and issued medical report at
Exh.258.
i) Abrasion of 2 X 0.5 cm on his forehead.
ii) Abrasion of 0.5 X 0.5 cm on the back of the head.
iii) Laceration of 2 X 1 cm on right wrist.
iv) Laceration of 2 X 1 cm on left wrist.
v) Laceration of 1 X 1 cm on right knee joint.
17 cr-appeal-336-16+4.odt
This witness also examined the Baton and the steel rod
and opined that injury nos. i) and ii) may be caused due to these
weapons and death may also occur.
12. Dr. Amal Potdar (PW14), the surgeon in whose hospital
Dinesh (PW2) was admitted for two days has been examined by the
prosecution. He also found the following injuries on the person of
Dinesh (PW2):-
i) Abrasion over right forehead, admeasuring 2 X ½ cm
ii) Abrasion over back side of head, admeasuring 1 X ½ cm
iii) Laceration over right wrist, admeasuring 2 X 1 cm
iv) Laceration over left wrist admeasuring 2 X 1 cm.
v) Laceration over right knee. RECOVERY WITNESSES
13. The prosecution examined Vaibhav Vasantrao Donadkar
(PW11), a panch who had been to the spot of the incident i.e. the
house of the prosecutrix, the Railway Track and the spot at Tadoba
road. This witness has deposed that on 06.11.2014, he had been to
the house of the prosecutrix from where bottles of liquor, pieces of
cigarette and water bottles were seized under seizure panchnama Exh.
173 and Exh.174. The recovery of the seat cover from the vehicle in
which the prosecutrix was taken away was done in the presence of the
18 cr-appeal-336-16+4.odt
prosecutrix (Exh.175) after she identified the vehicle. It is further the
version of this witness that the clothes of Dinesh and Rakesh with
medical samples were seized in his presence under panchnana Exh.
178 to 185 and this witness claimed to be present at the time of
preparing the spot panchanama of the Railway Track and seizure of the
shoe from a nearby place under panchnama Exh.186 and 187.
Thereafter, this witness also went to the spot at Tadoba Jungle and
panchnama at Exh. 175 was prepared. Apart from this, this witness
has also testified that the statement of appellant- Kadir was recorded at
the Police Station pursuant to which, a knife and a ‘Zara’ were
recovered at the instance of appellant- Kadir, under panchnama
Exh.188 and 189. It appears from the tenor of cross-examination that
this witness alongwith the Police went to the room of the prosecutrix
and seized articles which were relevant to the investigation. This
witness identified those articles in the Court. So far as recovery of the
shoe belonging to Dinesh near the Railway track is concerned, in the
cross-examination this witness has identified the shoe and admitted
recovery of the shoe from the bushes near the Railway track. Though,
this witness has shown acquaintance with Dinesh and Rakesh but
considering the tenor of cross-examination and corroboration of his
version with the version of Pralhad Rupgir Giri (PW23) coupled with
19 cr-appeal-336-16+4.odt
production of the articles before the Court, the Trial Court rightly held
that the recovery of articles deposed by this witness is proved.
14. This takes us to the version of Vijay Jagdish Sharma
(PW13), one of the panchas to the seizure of clothes of appellant –
Wasim, seizure of two mobiles phones and one rod at the instance of
appellant- Wasim. He deposed that on 16.11.2014, appellant- Wasim
admitted in his presence that he will produce the weapon and the
clothes. The said statement was recorded at Exh.199 and thereafter,
he took them to his Garage and produced clothes, two mobile phones
and one rod which were seized under panchnama Exh.200. According
to this witness, on the next day, at the instance of appellant- Wasim, a
wheel spanner was seized under Exh.192. This witness identified all
these articles seized in his presence. The cross-examination does not
suggest that the mobile phone and iron rod were not seized from the
house of Wasim, only the identity of the mobile phone is questioned in
his cross-examination. This evidence is corroborated by Pralhad Giri
(PW-23), the investigating officer and production of the Nokia mobile
phone (Article – 4) in the trial Court.
15. The prosecution also came up with recovery of the Axe by
which appellant- Maksud tried to assault Dinesh during the initial
quarrel. For this purpose, the prosecution has relied upon the version
20 cr-appeal-336-16+4.odt
Feroz Gafur Sheikh (PW24), a Panch Witness who has testified that on
9.11.2014, appellant- Maksud disclosed that he has kept the Axe used
in the incident in his house which was recorded under Exh.267 and
pursuant to which, he took this witness and other panchas including
the photographer to his house and took out the Axe which was seized
under panchnama Exh.268. Nothing elicited in the cross-examination
of this witness to disbelieve his version that the Axe was recovered
from the house of Maksud.
OTHER WITNESSES
16. We will now examine the versions of Gangadhar Nagorao
Bhoyar (PW-16), Ganesh Gajanan Dethe (PW-17) and Vivek Zade
(PW21).
17. The testimoy of Ganesh (PW-17) and Vivek (PW-21)
reveals that they are employees of the Railways. On 05.11.2014, they
were on night paroling duty between location No. 837.0 to 839.0. In
the morning, at about 5:00 to 5:30 am, they went to the boring-pump
to fetch water near Zilla Parisad School, Vilson. According to them,
they saw a boy in an injured condition having injuries on his head and
his shirt was blood-stained. He asked them for water. On his request,
Vivek (PW21) lent his mobile phone to the said boy. He talked to his
Bhauji and told him that he was beaten up and also disclosed his
21 cr-appeal-336-16+4.odt
location. This witness also talked to the said person on the mobile
phone and requested him to pick up the injured.
18. Gangadhar Bhoyar (PW16), the employer of Dinesh with
whom he was working, is the person to whom Dinesh (PW2) made a
call from the mobile phone of Vivek (PW21) from village Vilson. This
witness testified that he talked to Dinesh (PW2) and the person to
whom the mobile phone belongs. Vivek (PW21) told Gangadhar
(PW16) that Dinesh is lying in an injured condition at village Vilson
and after asking for the exact location, Gangadhar (PW16) reached
village Vilson and found Dinesh lying there. Dinesh had injuries on his
back and head and his clothes were stained with blood. This witness
further testified that on the way to the hospital, Dinesh informed him
about the incident.
19. We shall now discuss the evidence of other two witnesses
which is relevant to decide these appeals. Rupesh Pande (PW19), the
owner of the Tata Sumo vehicle and Kashinath Nigot (PW22), the
owner of the Tata Indica vehicle wherein, the alleged incident took
place.
20. Rupesh Pande (PW19), the owner of the Tata Sumo
bearing registration No. MH34/M-9740 has testified that on
22 cr-appeal-336-16+4.odt
06.11.2014, Goldi and Jobi came to his house at about 11:00 in the
night. They requested this witness to let them borrow his vehicle in
order to take Wasim’s mother to the hospital. Therefore, this witness
accompanied them in the said Tata Sumo vehicle and he also
consumed liquor. Thereafter, Jobi started driving the vehicle.
Appellant- Jobi took them to Sindewahi where appellants Wasim, Kadir
and the juvenile in conflict with law arrived in a Maruti Car and
boarded the Tata Sumo. They went towards Chandrapur where Joby
and Goldi got down from the vehicle and others proceeded towards
Adilabad. At Adilabad, Wasim and Kadir got down and this witness
and the juvenile in conflict with law proceeded back to Chandrapur
when the Police vehicle started chasing them on the way. The juvenile
in conflict with law fled and this witness was apprehended.
21. Kashinath (PW22), is the owner of the Tata Indica vehicle
bearing registration no. MH-01/Y-1943, who testified that on
05.11.2014 at about 9:00 am in the morning he handed over the Tata
Indica Car to appellant- Wasim for repair work and Wasim assured that
he will deliver the vehicle in the afternoon. When in the afternoon, he
enquired about the vehicle, Wasim said that the vehicle is yet to be
repaired. In the evening when this witness made a phone call to
Wasim, he told that after the repair work is done, he will drop the
vehicle to the house of this witness. Wasim did not return the vehicle
23 cr-appeal-336-16+4.odt
to this witness as promised. On the next day i.e. on 06.11.2014, Wasim
informed this witness that there was a quarrel and thereafter, Wasim
sent the vehicle to this witness through one Bhurya. Wasim, in his
statement under Section 313 of the CrPC admitted that the vehicle was
with him on 05.11.2014 and 06.11.2014.
FORENSIC EVIDENCE
22. The DNA report, Exh.330 shows that the full shirt and the
jeans pant seized from Dinesh (PW2), which he was wearing at the
time of the incident, were stained with blood as well as the seat cover
and the shirt seized from the prosecutrix was also stained with the
blood of Dinesh (PW2). That apart, the DNA report also depicts that
the wall scrapping seized from the School at Vilson also contained the
blood of Dinesh (PW2). No semen was detected either on the clothes
of the prosecutrix or on the clothes of appellants- Wasim, Kadir and the
juvenile in conflict with law. Apart from that, burnt cigarette butts
contained the DNA profile of the prosecutrix.
23. The prosecution has also relied on the reports of chemical
analysis at Exh. 333. The CA report reveals the presence of blood on
the clothes of the prosecutrix; full shirt and jeans pant of Dinesh
(PW2); full shirt of Wasim and scrapping of the wall as well as on the
24 cr-appeal-336-16+4.odt
seat cover. The CA reports Exh. 275 and 276 depict the presence of
Alcohol in the blood of the prosecutrix and Dinesh (PW2).
IDENTIFICATION OF THE ACCUSED PERSONS
24. It is the case of the prosecution that the prosecutrix,
Dinesh (PW2) and Rakesh (PW3) identified appellants- Kadir and Siraj
in the test-identification parade conducted by Pramod Kulte (PW9),
the then Naib Tahsildar. He has been examined at Exh.161. He
testified about the requisition by the Police for conducting test-
identification parade; and accordingly, he conducted the test-
identification. This witness has testified that Rakesh (PW3) identified
accused- Shaikh Kadir and Siraj. Likwise, Dinesh (PW2) and the
prosecutrix also identified appellant- Shaikh Kadir and Siraj in the
presence of panchas and therefore, memorandum panchnamas at Exh.
164 and 165 were prepared. The version of Pramod Kulte (PW9),
Circle Officer, who conducted the test identification and Rahul Jagdish
Shende (PW12), witness to the test identification parade, reveals that
the test identification was conducted wherein Kadir and Siraj were
identified.
ELECTRONIC EVIDENCE
25. It is to be mentioned here that the Nokia mobile phone
seized at the instance of Wasim was sent for Cyber Forensic
25 cr-appeal-336-16+4.odt
examination and 69 images and 10 videos were retrieved. The said 69
images and 10 videos were produced before the Court in the form of a
CD containing the photos and videos of the prosecutrix and Rakesh in
compromising positions, which is palpable from the panchnama
prepared at the time of running of the said CD before the Trial Court.
26. No doubt, the mobile phone in which the alleged videos
were recorded and photos were snapped has been produced before the
Court but the CD which was run before the Court consists of the videos
and the photos, poses a question whether in absence of the certificate
mandated under Section 65B of the Evidence Act, the Court could have
relied on the contents of the CD that contained copies of the videos
and the photos.
27. Section 65B of the Indian Evidence Act provides for
admissibility of copy of electronic records on production of a certificate
in compliance with the conditions mentioned in the Section. Section
65B contemplates issuance of a certificate by the person having lawful
control and use of the said electronic records mentioning that the
conditions under Section 65B of the Indian Evidence Act have been
complied with. Here accused- Wasim, the accused in the crime, was
the person having lawful control and use of the Nokia mobile phone in
which naked photos and videos of the prosecutrix and Rakesh in
26 cr-appeal-336-16+4.odt
compromising positions were recorded. The electronic record sought
to be proved is against Wasim, therefore, as contemplated under
Section 65B of the Indian Evidence Act, a certificate issued by Wasim
would be required. Obviously, the electronic record which is sought to
be proved is against Wasim and therefore, the prosecution could not
get the certificate under Section 65B of the Indian Evidence Act for
two reasons: Firstly, Wasim will never agree to issue a certificate under
Section 65B of the Indian Evidence Act and Secondly, an accused in a
crime cannot be compelled to give incriminating evidence against
himself.
28. In the case of Arjun Panditrao Khotkar Vs. Kailash
Kushanrao Gorantyal , the Supreme Court after discussing two
1
maxims: Firstly ex non cogit ad impossibilia i.e. the law does not
demand the impossible; Secondly impotentia excusat legem i.e. when
there is a disability that makes it impossible to obey the law, the
alleged disobedience of the law is excused, has held in para no. 51 of
the judgment as under:-
“51. On an application of the aforesaid maxims to the present
case, it is clear that though Section 65-B(4) is mandatory, yet,
on the facts of this case, the Respondents, having done
everything possible to obtain the necessary certificate, which
was to be given by a third-party over whom the Respondents
had no control, must be relieved of the mandatory obligation
contained in the said sub-section.”
1 2020 (7) SCC 1
27 cr-appeal-336-16+4.odt
29. In wake of the two reasons stated above, it was not
possible for the prosecution to obtain the certificate provided under
Section 65B of the Indian Evidence Act from Wasim, who was having
lawful control over the electronic device i.e. the Nokia mobile phone.
Therefore, non-production of the certificate under Section 65B of the
Indian Evidence Act by the prosecution will not be fatal to the case,
provided that the prosecution is able to prove the authenticity of the
electronic record which has been produced in the Court.
30. This takes us to the report of the Cyber Forensic Lab
Exh.328, which describes how the data was retrieved from the mobile
phone having IMEI 1- 353637065232250 and IMEI 2-
353637069731711. It was firstly copied on the hard disk and
thereafter in the CD/DVD, which came to be produced in Court. That
apart, the ‘Hash Value’ of the original as well as the copy of the said
electronic record was verified and it matched as per the report. Hence,
the ‘Hash Value’ of the copies produced in the Court matches with the
‘Hash Value’ of the videos and the photos retrieved from the mobile
phone of Wasim.
31. The Supreme Court in the case of Zakia Ahsan Jafri Vs.
State of Gujarat 2 has held in para no. 278 as under:-
2 2023 (13) SCC 54
28 cr-appeal-336-16+4.odt“278. Insofar as the CD record submitted by Mr. Rahul
Sharma, as aforesaid, he had failed to handover the case
property to the investigating officer (of Naroda Police Station),
dealing with the case concerned nor got it entered in the
register of case property (Muddamal) or informed the Court of
jurisdiction about seizure of such case property. He had instead
produced the CD on 31-5-2008, which came to be seized by the
investigating officer and taken as evidence. These two CDs were
collected by the investigating officer from the records of
Nanavati-Shah Commission of Enquiry. Mr. Rahul Sharma had
submitted the same before the Commission. Additionally, one
CD containing the same information was submitted by Mr.
Amresh Bhai N. Patel, Jansangharsh Manch, which was
obtained by him from the Commission of Enquiry. That was also
produced before the investigating officer. In absence of the
original CDs which were never produced by Mr. Rahul Sharma,
it was not possible for SIT to obtain the certificate of
authenticity under Section 65-B of the Evidence Act, 1872 and
at the same time, it had been noticed that the CDs were copied
by Mr. Rahul Sharma in his computer and format changed, by
changing it in zipped format. The SIT has analyzed all these
aspects and opined that MD 5 Hash value of the files in all the
three CDs was found same. Further, the files containing call
detail records or fragments of the files could not be found on
the computer storage media. Moreover, due to lapse of time, no
fruitful purpose would have been served in seizing the mobile
phone of the user concerned after seven years to undertake
roving enquiry. All these aspects have been duly considered by
SIT while dealing with Allegation No. (xxiii) as reproduced
hitherto, in paragraph No. 60. The opinion so recorded by the
SIT commended to the Magistrate, as well as, the High Court.
We find no reason to deviate therefrom.”
32. In light of the observations made above, the Trial Court
was justified in relying on the electronic record without the certificate
mandated under Section 65B of the Indian Evidence Act.
APPRECIATION OF EVIDENCE
33. Considering the number of accused and the number of
offences alleged to have been committed by the appellants, we deem it
fit to consider the evidence of prosecution’s witnesses in sequence and
29 cr-appeal-336-16+4.odt
therefore, for the sake of convenience, we divide the case of the
prosecution in three parts:-
i) The incident near the room. ii) The incident inside of the room of the prosecutrix; and
iii) The incident which occurred outside the room of the prosecutrix.
INCIDENT NEAR THE ROOM OF THE PROSECUTRIX
34. We now deal with the incident which occurred near the
room where the prosecutrix and Dinesh were residing. It has come in
many words in the evidence of the prosecution’s witnesses that the
prosecutrix was residing with Dinesh in a rented room owned by
Shabbir, the brother of Maksud. Rather, this aspect has not been
disputed by the defence. For this purpose, the prosecution relied on
the version of the prosecutrix, Dinesh and Rakesh.
35. The quarrel between the prosecutrix and Dinesh on one
side and Maksud on the other is palpable from the evidence of the
prosecutrix and Dinesh. The statement of Maksud recorded under
Section 313 of the CrPC also reveals that a quarrel took place between
him and the prosecutrix. The prosecutrix and Dinesh have deposed
about the quarrel between them and Maksud on account of increase in
the electricity bill due to washing of her vehicle with the help of motor.
In that quarrel, Maksud abused the prosecutrix by calling her
30 cr-appeal-336-16+4.odt
“Bhadkhau”. The Trial Court relied on the version of these two
witnesses and held that Maksud has committed the offence of criminal
intimidation with threat of causing grievous injury and convicted and
sentenced him for seven years imprisonment.
36. Criminal intimidation has been defined under Section 503
of the IPC, which reads as under:-
“503. Criminal Intimidation.- Whoever threatens another with
any injury to his person, reputation or property, or to the person
or reputation of any one in whom that person is interested, with
intent to cause alarm to that person, or to cause that person to
do any act which he is not legally bound to do, or to omit to do
any act which that person is legally entitled to do, as the means
of avoiding the execution of such threat, commits criminal
intimidation.
Explanation.- A threat to injure the reputation of any deceased
person in whom the person threatened is interested, is within
this section.”
37. Thus, to bring the accused within the ambit of criminal
intimidation, the ingredients of Section 503 of the IPC will have to be
considered. Section 503 of the IPC states that, a person must threaten
another with injury to his person or reputation or to the property with
intent to cause alarm to that person or cause that person to do or to
omit an act which he is not legally bound to do. There is nothing on
record to show that Maksud threatened the prosecutrix and Dinesh
with intent to cause alarm to the prosecutrix to do any act which the
prosecutrix or Dinesh were not legally bound to do. Utterance of the
word “Bhadkhau” by Maksud by no stretch of imagination is
31 cr-appeal-336-16+4.odt
threatening so as to bring him under the gamut of criminal
intimidation, that too punishable under Part-II of Section 506 of the
IPC. Therefore, the finding of the Trial Court holding Maksud guilty for
the offence punishable under part – II of Section 506 of the IPC is
erroneous. We accordingly set it aside.
INCIDENT INSIDE THE ROOM OF PROSECUTRIX
38. The deposition of the prosecutrix and Dinesh further
depicts that after the quarrel was pacified by Shabbir, Maksud went to
his house, brought an Axe, barged into the room of the prosecutrix and
even tried to assault Dinesh but he could not succeed due to the push
given by Dinesh. The version of Pralhad Rupgir Giri (PW-23) reveals
that at the instance of Maksud, an ‘Axe’ was recovered at Exh.268.
39. It is further the version of the prosecutrix as well as
Dinesh that Wasim, along with Kadir and some unknown persons also
barged into the room of the prosecutrix along with Maksud. The
prosecutrix and Dinesh in chorus have categorically deposed that the
moment they opened the door after Wasim knocked, Kadir assaulted
Dinesh by means of a baton on his forehead and other parts of the
body. It is also the version of the prosecutrix, Dinesh and Rakesh that
Rakesh was assaulted by Kadir and Wasim after he reached there.
Moreover, Wasim made the prosecutrix and Dinesh drink liquor and he
32 cr-appeal-336-16+4.odt
also forced the prosecutrix to smoke cigarettes. Their version is also
corroborated by the spot panchnama and seizure of cigarettes butts,
empty liquor bottles, water bottles and seizure of baton from the spot
of the incident. The DNA report Exh.330 also shows that cigarettes
butts carry the DNA of the prosecutrix. The CA report also reveals that
the blood of the prosecutrix and Dinesh contains Alcohol. The injury
certificate Exh.213 and Exh. 258 issued by Dr. Amal Potdar (PW14)
and Dr. Digambar Rathod (PW20), who examined Dinesh reveals that
Dinesh had an injury on his forehead and other parts of the body. The
CA report and the DNA report reveal that the clothes seized from the
person of Dinesh had stains of blood which belongs to Dinesh. Injury
certificate (Exh-215) and evidence of Dr. Morarji Mohan Kusnake
(PW-15) also corroborates with the version of the prosecutrix, Dinesh
and Rakesh that Kadir also assaulted Rakesh with a baton and a knife
and inflicted injuries on him.
40. It has been submitted by Mr. Tiwari, learned counsel for
Kadir that the parading procedure for conducting the Test
Identification (TI) Parade contemplated under the Criminal Manual
has not been followed and therefore, the TI Parade stands vitiated and
cannot be relied upon. We are hastened to add that TI Parade assures
that the investigation is in the right direction. It is a rule of prudence
33 cr-appeal-336-16+4.odt
which is required to be followed where the accused is not known to
the victim.
41. In the present case, the initial incident occurred inside the
room of the prosecutrix in close proximity with the
eye-witnesses/victim. The prosecutrix, Dinesh and Rakesh had ample
opportunity to identify Kadir as he was with them inside the room for
more than two hours. Rather, Rakesh was acquainted with the friend
of Kadir. Thereafter, Kadir was with Dinesh till they reached the
Railway track and with the prosecutrix for the whole night. Therefore,
even if there are procedural lapses in conducting the TI Parade, the
evidence of the prosecutrix, Dinesh and Rakesh cannot be doubted.
These witnesses identified Kadir not only in the TI Parade but also in
the Court. Above all, the conviction of Kadir is not solely based on the
TI parade but there is ample corroborative evidence in the form of
recovery of weapon, travelling back to Chandrapur along with Wasim
and the juvenile in conflict with law in the vehicle of Rupesh Pande
(PW19).
42. There is consistency in the version of the prosecutrix,
Dinesh and Rakesh regarding the fact that accused Wasim made the
prosecutrix and Rakesh strip themselves and get into compromising
positions and for that purpose, Wasim and Kadir beat Rakesh whereas,
34 cr-appeal-336-16+4.odt
Wasim slapped the prosecutrix. Wasim videographed and snapped
photos of the prosecutrix and Rakesh in compromising positions. Their
version is supported by electronic evidence i.e. the images and videos
found in the Nokia mobile phone belonging to Wasim wherein, the
prosecutrix and Rakesh were seen in compromising positions. Thus,
the versions of the prosecutrix, Rakesh and Dinesh corroborate with
each-other and is also corroborated by other evidence including
electronic evidence as discussed above. The depositions of the
prosecutrix, Dinesh and Rakesh inspire confidence of the Court and the
Trial Court has rightly appreciated and relied on the versions of the
prosecutrix, Rakesh and Dinesh.
43. Needless to mention that, considering the role played by
each accused, i.e. Wasim calling Maksud and asking him to come to the
room of the prosecutrix; Wasim accompanying Kadir who brought the
baton with him; Maksud, Wasim and Kadir entering the room of the
prosecutrix; Kadir assaulting Dinesh and Rakesh at the instance of
Wasim and Maksud; and recording of pornography inside the room
indicates sharing of common intention amongst them.
44. Thus, from the above material available on record, the
Trial Court was completely justified in holding that accused Maksud,
Wasim and Kadir committed criminal tress-pass in the room occupied
35 cr-appeal-336-16+4.odt
by the prosecutrix with intent to commit offences punishable for
imprisonment for life i.e. with preparation for hurt, assault or wrongful
restrain and thereby committed the offences punishable under Sections
450, 452, 354A, 354B, 354C of the IPC and Section 66E of the IT Act,
2000.
45. Sofar as Siraj is concerned, it has been claimed by the
prosecution that Siraj also accompanied Wasim and Kadir while
trespassing into the room of the prosecutrix and remained inside the
room and hence, he has common intention. It will be worthwhile to
mention here that, though the prosecutrix has identified Siraj in the
test-identification parade conducted by Pramod Kulte (PW9) but the
scrutiny of evidence of the prosecutrix, Dinesh and Rakesh goes to
show that none of these witnesses have deposed that Siraj also entered
the room of the prosecutrix. Rather, their version goes to show that
only three persons were inside i.e. Maksud, Wasim and Kadir baring
one person aged about 18 years who brought liquor at the instance of
Wasim who perhaps appears to be a juvenile. Therefore, it will be
difficult to rely on the version of the prosecutrix, who identified Siraj
on the basis of guesswork as the person who accompanied Wasim and
Kadir, who entered in her room. I find force in submission of Mr. Daga,
learned counsel that the Trial Court missed this aspect and erroneously
convicted Siraj for the offences punishable under Sections 450, 452,
36 cr-appeal-336-16+4.odt
326, 354B r/w 34, 109, 114 and 149 of the IPC. The benefit of doubt
goes in favour of Siraj. Accordingly, we set aside the conviction of Siraj
for the aforesaid offences.
46. This takes us to the findings of the Trial Court convicting
appellants- Maksud, Wasim, and Kadir for the offence punishable
under Section 326 of the IPC and sentencing them to suffer rigorous
imprisonment for 10 years.
47. To accord a conviction under the offence punishable under
Section 326 of the IPC, grievous hurt defined under Section 320 of the
IPC is a sine qua non. The Trial Court relied on the Query Report
(Exh-259) issued by Dr. Digambar Rathod (PW-20) wherein he opined
that if complications arise, the injury caused to Dinesh may cause
death. Relying on Clause VIII of Section 320 of the IPC, the Trial Court
held that any hurt which endangers life will come under the sweep of
grievous hurt. Query Report (Exh-259) shows that if complications
arise, only then the injuries caused to Dinesh will endanger his life. It
is a matter of record that both the Doctors recorded that the injuries on
the person of Dinesh and Rakesh are simple injuries. It cannot be
disputed that if complications arise even simple hurt may endanger
life. The purport of Clause VIII of Section 320 of the IPC is that hurt
caused by the offender must endanger life and it does not depend on
37 cr-appeal-336-16+4.odt
the condition of future complications that are likely to arise. For
invoking Clause VIII of Section 320 of the IPC, the offender must cause
injury which itself endangers the life of the victim, which is absent in
this case. The finding of the Trial Court that grievous hurt was caused
is not correct. The injuries caused to the person of Dinesh and Rakesh
do not come under the ambit of grievous hurt/injury. The conviction
recorded by the Trial Court against Maksud, Wasim and Kadir under
Section 326 of the IPC does not stand for the reason that simple hurt
has been caused by the baton and knife which is punishable under
Section 324 of the IPC and not under Section 326. We, therefore, set
aside the conviction of Maksud, Wasim and Kadir for the offence
punishable under Section 326 of the IPC and instead, we hold them
guilty for the offence punishable under Section 324 of the IPC.
INCIDENT OUTSIDE THE ROOM OF THE PROSECUTRIX
48. We now turn to the incidence which occurred thereafter. It
is the version of the prosecutrix and Dinesh that Wasim, Kadir and the
juvenile in conflict with law brought them out of the room and put
them in the Tata Indica car. Dinesh was put on the back seat of the
Tata Indica car in an injured condition whereas, the prosecutrix was
made to sit on the middle seat of the car and they took them to
Nandori Bifurcation. It is also the version of Dinesh that the juvenile in
conflict with law as per direction, removed the wallet containing
38 cr-appeal-336-16+4.odt
Rs.3,000/- from the person of Dinesh. The prosecutrix’s version is that
they put Dinesh on the Railway track. The version of Dinesh shows
how he, who was in a drunken condition, was kept on the Railway
track by Wasim, Kadir and the juvenile in conflict with law twice and
when the train came, he succeeded in saving his life by removing
himself from the Railway track. His version gets corroboration by
recovery of his shoe from the bushes near the Railway track. His
version that he was assaulted on the back of his head is also
corroborated by the version of Dr. Morarji Kusnake (PW-15) and Dr.
Digambar Rathod (PW-20), who found an injury on back of the head of
Dinesh and opined that the injury may be caused with the help of an
iron rod. The consistent version of Dinesh also gets support by the
discovery of blood from the wall of a School on the way to village
Vilson where he stayed. The DNA report also reveals that his blood was
found on his shirt, seat cover of the Tata Indica car as well as on the
clothes of the prosecutrix. Ganesh Gajanan Dethe (PW-17) and Vivek
Zade (PW-21), the employees of the Railways who were on patrolling
duty in wee hours of 06.11.2014 met Dinesh in an injured condition
and under the influence of liquor. Dinesh succeeded to contact his
employer Gangadhar Nagorao Bhoyar (PW-16) through these
witnesses who deposed that Gangadhar Nagorao Bhoyar (PW-16) came
there, took him to Chandrapur and got him admitted to the Hospital.
39 cr-appeal-336-16+4.odt
The version of Dinesh is corroborated in many words by Ganesh
Gajanan Dethe (PW-17), Vivek Zade (PW-21), Gangadhar Bhoyar (PW-
16) and other evidences.
49. At this juncture, it will also be proper to state that Rakesh,
after returning from the room of the prosecutrix again went to the
room of the prosecutrix alongwith Mahesh Gurunule, Mangesh Uke
and Dewa at about 2:30 am in the night. They found nobody inside
the room of the prosecutrix. This also corroborates the abduction of
the prosecutrix and Dinesh and the incident that occurred in the jungle
with Dinesh. In view of the voluminous evidence available on record,
the Trial Court did not err in relying on the version of the prosecutrix
and more particularly, Dinesh.
50. Mr. Arjun Bobde, learned counsel for Wasim vehemently
submitted that the injuries on the person of Dinesh were simple
injuries. If it had been the intention of Wasim and the other accused
persons to commit the murder of Dinesh, they would have left Dinesh
with severe injuries to make sure that he dies. According to him, this
aspect has not been considered by the Trial Court. To buttress his
submission, he seeks to rely on the decision of the Supreme Court in
40 cr-appeal-336-16+4.odt
the case of Sivamani and another Vs. State Represented by Inspector of
Police 3, wherein it is held as under :-
“10. Having considered the facts and circumstances of
the case and submissions of learned counsel for the
parties, this Court is convinced that the Impugned
Judgment of the High Court requires to be interfered with.
Admittedly, there is no allegation of repeated or severe
blows having been inflicted. Even the injuries on PW1 and
PW2 have been found to be simple in nature, which is an
additional point in the appellants’ favour.
11. We are further inclined to accept the submissions of the
learned counsel for the appellants that from the materials on
record, only offences under Sections 323 and 324 of the IPC
can be made out. As such, the convition under Section 307,
IPC is unsustainable.”
51. It is a settled principle of law that for recording conviction
under Section 307 of the IPC, injury is not a sine qua non and it is not
necessary that bodily injury capable of causing death should have been
inflicted. The Court has to see whether the act, irrespective of its
result, was done with intention or knowledge and in accordance with
the circumstances mentioned in sub-Section 307 of the IPC. In the
case of Jage Ram Vs. State of Haryana 4, it has been held that just
because a fatal injury was not sustained, that alone does not dislodge
Section 307 of the IPC. What is material is the intention of the accused
which can be gathered from surrounding circumstances including the
actual injury, nature of weapon and severity of the blow. We must
state here that it has been proved that the accused persons put Dinesh,
3 2023 SCC Online SC 1581
4 2015 (11) SCC 366
41 cr-appeal-336-16+4.odt
who was under the influence of liquor as proved in the CA report, on
the Railway track to make sure that he gets crushed under the Train
and does not survive. When he managed to save himself inspite of
being under the influence of liquor, the accused persons particularly,
Kadir and the juvenile in conflict with law again brought him on the
Railway track to make sure that he gets killed but fortunately, again he
succeeded in saving himself. Thus, from the facts which have been
brought on record, it is clear that Wasim and Kadir alongwith the
juvenile in conflict with law tried to kill Dinesh by putting him on the
Railway track to make sure that he gets crushed under the wheels of
the Train. Therefore, we see no infirmity in the conviction recorded by
the Trial Court holding Wasim and Kadir guilty for the offence
punishable under Sections 307, 366 and 394 read with 34 of the IPC.
GANG RAPE
52. As per the IPC, where a woman is raped by one or more
persons constituting a group or acting in furtherance of common
intention, all those persons shall be deemed to have committed the
offence of gang rape. It is the case of the prosecutrix that in the
intervening night of 05.11.2014 and 06.11.2014 Wasim, Kadir and the
juvenile in conflict with law committed rape on her.
42 cr-appeal-336-16+4.odt
SUBMISSIONS
53. Mr. Arjun Bobde, learned counsel appearing on behalf of
Wasim vehemently submitted that there was no injury on the private
parts of the prosecutrix. Though, hymen was ruptured but it was an
old injury and no signs of force or restrain to penetrative assault were
seen. All these rule out the possibility of forceful rape much less gang
rape. The material on record also does not suggest any injury except
injury on her elbow and below the right eye. According to him, if the
alleged incidents of gang rape occurred on the ground in the jungle
and if a person is raped on an earthy surface, particularly, if it is a case
of gang rape then injuries on other parts of the body, more particularly
on the back of the victim are bound to be present. Even the nail
clippings of the prosecutrix suggest that no attempts were made by the
prosecutrix to resist the accused. Therefore, all these suggest that no
incident of rape occurred, much less gang rape. He further went on to
submit that if forceful gang rape is committed then injury on the
private part of the prosecutrix is one of the determining factors which
is conspicuously absent in this case.
54. A strong reliance has been placed on the admission of the
prosecutrix in her cross-examination that during sexual intercourse,
semen spilled over her private parts and on her clothes. Taking help of
this admission, Mr. Arjun Bobde, learned counsel vehemently
43 cr-appeal-336-16+4.odt
submitted that the DNA report (Exh.333) emphatically mentioned that
no semen was found on the leggings of the prosecutrix which she wore
at the time of the alleged incident. According to him, this itself goes to
show that the prosecutrix is deposing falsely about the incident and the
fact that she was repeatedly raped by Wasim, Kadir and the juvenile in
conflict with law. He further went on to submit that the DNA report of
the vaginal swab and the pubic hair of the prosecutrix is also
inconclusive. Therefore, Wasim and Kadir are entitled for benefit of
doubt at the least. According to him, the version of the prosecutrix is
not corroborated with the DNA report and therefore, it will not be safe
to rely on the version of the prosecutrix particularly, in light of the fact
that the prosecutrix formerly had an intimate relationship with Wasim.
Therefore, possibility of the prosecutrix deposing falsely cannot be
ruled out. Hence, the present accused persons, particularly Wasim
should be given the benefit of doubt by recording the order of acquittal
against the charge of gang rape.
55. Mr. Bobde would submit that even the Doctor was not
sure and she has answered question no. 2 of the query report by
stating that she cannot comment whether the prosecutrix was
subjected to gang rape. He further went on to submit that even the
clothes of the prosecutrix did not have traces of earth of the jungle.
Therefore, all these rule out the possibility of forceful sexual
44 cr-appeal-336-16+4.odt
intercourse, more particularly gang rape. Therefore, the version of the
prosecutrix in this regard is doubtful and cannot be believed. To
buttress his submission, he seeks to rely on para nos. 11 and 12 of the
judgment in the case of Raju and others Vs. State of Madhya Pradesh 5,
which reads as under :-
“11. It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress, humiliation
and damage to the accused as well. The accused must also be
protected against the possibility of false implication, particularly
where a large number of accused are involved. It must, further,
be borne in mind that the broad principle is that an injured
witness was present at the time when the incident happened
and that ordinarily such a witness would not tell a lie as to the
actual assailants, but there is no presumption or any basis for
assuming that the statement of such a witness is always correct
or without any embellishment or exaggeration.
12. Reference has been made in Gurmit Singh’s case
[(1996) 2 SCC 384] to the amendments in 1983 to Sections
375 and 376 of the India Penal Code making the penal
provisions relating to rape more stringent, and also to Section
114-A of the Evidence Act with respect to a presumption to be
raised with regard to allegations of consensual sex in a case of
alleged rape. It is however significant that Sections 113-A and
113-B too were inserted in the Evidence Act by the same
amendment by which certain presumptions in cases of
abetment of suicide and dowry death have been raised against
the accused. These two Sections, thus, raise a clear presumption
in favour of the prosecution but no similar presumption with
respect to rape is visualized as the presumption under Section
114-A is extremely restricted in its applicability. This clearly
shows that in so far as allegations of rape are concerned, the
evidence of a prosecutrix must be examined as that of an
injured witness whose presence at the spot is probable but it
can never be presumed that her statement should, without
exception, be taken as the gospel truth. Additionally her
statement can, at best, be adjudged on the principle that
ordinarily no injured witness would tell a lie or implicate a
person falsely. We believe that it is under these principles that
this case, and others such as this one, need to be examined.”
5 (2008) 15 SCC 133
45 cr-appeal-336-16+4.odt
56. He also relied upon the judgment in the case of Santosh
Prasad @ Santosh Kumar Vs. State of Bihar 6,which reads thus :-
“6. Having gone through and considered the deposition of
the prosecutrix, we find that there are material contradictions.
Not only there are material contradictions, but even the manner
in which the alleged incident has taken place as per the version
of the prosecutrix is not believable. In the examination-in-chief,
the prosecutrix has stated that after jumping the fallen
compound wall accused came inside and thereafter the accused
committed rape. She has stated that she identified the accused
from the light of the mobile. However, no mobile is recovered.
Even nothing is on record that there was a broken compound
wall. She has further stated that in the morning at 10 O’clock
she went to the police station and gave oral complaint.
However, according to the investigating officer a written
complaint was given. It is also required to be noted that even
the FIR is registered at 4:00 p.m. In her deposition, the
prosecutrix has referred to the name of Shanti Devi, PW 1 and
others. However, Shanti Devi has not supported the case of the
prosecution. Therefore, when we tested the version of PW 5 –
prosecutrix, it is unfortunate that the said witness has failed to
pass any of the tests of “sterling witness”. There is a variation in
her version about giving the complaint. There is a delay in the
FIR. The medical report does not support the case of the
prosecution. FSL report also does not support the case of the
prosecution. As admitted, there was an enmity/dispute between
both the parties with respect to land. The manner in which the
occurrence is stated to have occurred is not believable.
Therefore, in the facts and circumstances of the case, we find
that the solitary version of the prosecutrix – PW 5 cannot be
taken as a gospel truth at face value and in the absence of any
other supporting evidence, there is no scope to sustain the
conviction and sentence imposed on the appellant and accused
is to be given the benefit of doubt.”
57. Reliance is also placed on the case of Rai Sandeep @
Deepu Vs. State (NCT of Delhi) 7, wherein in para no. 31 it is observed
as under:-
“31. When we apply the above principles to the case on hand,
we find the prevaricating statements of the prosecutrix herself in
the implication of the accused to the alleged offence of gang6 (2020) 3 SCC 443
7 (2012) 8 SCC 21
46 cr-appeal-336-16+4.odtrape. There is evidence on record that there was no injury on
the breast or the thighs of the prosecutrix and only a minor
abrasion on the right side neck below jaw was noted while
according to the prosecutrix’s original version, the appellants
had forcible sexual intercourse one after the other against her. If
that was so, it is hard to believe that there was no other injury
on the private parts of the prosecutrix as highlighted in the said
decision. When on the face value the evidence is found to be
defective, the attendant circumstances and other evidence have
to be necessarily examined to see whether the allegation of gang
rape was true. Unfortunately, the version of the so called eye
witnesses to at least the initial part of the crime has not
supported the story of the prosecution. The attendant
circumstances also do not co-relate to the offence alleged
against the appellants. Therefore, in the absence of proper
corroboration of the prosecution version to the alleged offence,
it will be unsafe to sustain the case of the prosecution.”
58. Conversely, learned APP for the State vehemently
submitted that the evidence of the prosecutrix is entitled to great
weightage even in absence of corroboration. She is not an accomplice
but her evidence is to be scrutinized as the evidence of an injured
witness. The prosecutrix cannot be disbelieved even if the Doctor
found no sign of injury or restraint. According to him, the prosecutrix
was habitual to sexual intercourse and therefore, absence of injury on
her private parts would not ruled out rape, more particularly, when the
prosecutrix was under the influence of liquor which was forcefully
administered to her by Wasim. To buttress his submission, he seeks to
rely on the judgment in the case of State of Rajasthan Vs. Biram Lal 8,
wherein in para no. 15, the Supreme Court has held as under:-
“15. We, therefore, find it difficult to sustain the order of
acquittal passed by the High Court in respect of the offence
under Section 376 IPC. It is not the law that in every case
version of the prosecutrix must be corroborated in material8 AIR 2005 SC 2327
47 cr-appeal-336-16+4.odtparticulars by independent evidence on record. It all depends on
the quality of the evidence of the prosecutrix. If the Court is
satisfied that the evidence of prosecutrix is free from blemish
and is implicitly reliable, then on the sole testimony of the
prosecutrix, the conviction can be recorded. In appropriate
cases, the court may look for corroboration from independent
source or from the circumstances of the case before recording
an order of conviction. In the instant case, we find that the
evidence of the prosecutrix is worthy of credit and implicitly
reliable. The other evidence adduced by the prosecution, in fact,
provides the necessary corroboration, even if that was
considered necessary. The High Court on a clear misreading of
the evidence on record, acquitted the respondent of the charge
under Section 376, IPC while upholding his conviction under
Section 450, IPC.”
CONSIDERATION
59. Having heard Mr. Bobde, learned counsel appearing for
appellant- Wasim and Mr. Tiwari, learned counsel appearing on behalf
of Kadir as well as the learned APP, we have gone through the record.
As per medical report, more particularly according to Dr. Dipti
Shrirame (PW10), there was no injury on the private part of the
prosecutrix as well as other parts of the body except on the left elbow
and below the right eye. As per the DNA report, no semen was
detected on the leggings of the prosecutrix which she wore at the time
of the incident and no DNA came to be amplified from the public hair,
vaginal swab and sputum sample of the prosecutrix.
60. Evidently, there is no injury on the private parts of the
prosecutrix inspite of having deposed that she was subjected to
repeated sexual intercourse by Wasim, Kadir and the juvenile in
48 cr-appeal-336-16+4.odt
conflict with law during the intervening night of 05.11.2014 and
06.11.2014. However, at the same time, we cannot ignore the fact that
the prosecutrix was made to drink large quantity of liquor and she was
under the influence of it. This is evident from the CA report reflecting
the presence of Alcohol in the blood of the prosecutrix, the sample of
which was taken by Dr. Dipti Shrirame (PW10) in the afternoon of
06.11.2014. The counsel for the appellants have themselves admitted
that Wasim and the prosecutrix knew each other prior to the incident
which suggests that they were well acquainted with each other prior
to the alleged incident. Apart from that, the prosecutrix was
surrounded by three strong men and she was inebriated. These factors
are self explanatory as to why the prosecutrix did not resist when she
was being subjected to sexual assault. Rather, it was not the case that
physical force was used by each one of them while committing sexual
intercourse. The seizure panchnama of the leggings shows that it was
soaked with dust which proves that she was made to lie down on an
earthy surface. The absence of injury on the back and other parts of
the body of the prosecutrix inspite of repeated sexual intercourse by
the three of them has been sufficiently explained by the learned APP as
the prosecutrix was habitual to sexual intercourse. Therefore, absence
of injury on the body of the prosecutrix is already explained and it
would not be of any advantage to the accused.
49 cr-appeal-336-16+4.odt
61. It will be appropriate to refer the case of State of Uttar
Pradesh Vs. Chhotelal 9, wherein the Supreme Court in para no. 32 has
held as under:-
“32. Although the lady doctor, PW 5 did not find any injury
on the external or internal part of body of the prosecutrix and
opined that the prosecutrix was habitual to sexual intercourse,
we are afraid that does not make the testimony of the
prosecutrix unreliable. The fact of the matter is that the
prosecutrix was recovered almost after three weeks. Obviously
the sign of forcible intercourse would not persist for that long a
period. It is wrong to assume that in all cases of intercourse with
the women against will or without consent, there would be
some injury on the external or internal part of the victim. The
prosecutrix has clearly deposed that she was not in a position to
put up any struggle as she was taken away from her village by
two adult males. The absence of injuries on the person of the
prosecutrix is not sufficient to discredit her evidence; she was a
helpless victim. She did not and could not inform the
neighbours where she was kept due to fear.”
62. In the case of Rajendra @ Raja Bhat Vs. Bajrang
Shankarpale Vs. State of Maharashtra10 it has been held as under:-
“a] Absence of injury on private part of prosecutrix who is a
mother of grown up child, therefore absence of injuries on the
private part of the prosecutrix would not rule out the rape.
b] When evidence of prosecutrix is cogent, convincing and
true, it can be acted upon without corroboration.
c] Non-examination of doctor Cannot be fatal to
prosecution case when the evidence led otherwise is sufficient,
reliable and cogent and there is no good reason to disbelieve.”
63. In the case of Vijay @ Chinee Vs. State of M. P. 11, it has
been observed that non resistance on the part of the prosecutrix cannot
be relied upon to demonstrate that the conduct of prosecutrix was
9 (2011) 2 SCC 550
10 2009 ALL MR (CRI) 3534
11 2010 ALL MR (CRI) 3326
50 cr-appeal-336-16+4.odt
unnatural as it could be due to fear. It could not be assumed that the
prosecutrix consented to the act, even if she was a major. Conviction of
the accused was held to be proper.
64. In the case of Maroti Domaji Sadmake Vs. State 12, it has
been held that while appreciating evidence in a case of rape, mere
absence of medical evidence to prove sexual intercourse would not be
enough to reject strong, truthful and reliable evidence of the
prosecutrix.
65. In the case of Radhakrishna Nagesh Vs. State of Andhra
Pradesh 13 in para nos. 19 to 22 of the judgment, it has been held as
under:-
“19. It is a settled principle of law that a conflict or
contradiction between the ocular and the medical evidence has
to be direct and material and only then the same can be
pleaded. Even where it is so, the Court has to examine as to
which of the two is more reliable, corroborated by other
prosecution evidence and gives the most balanced happening of
events as per the case of the prosecution.
20. The absence of injuries on the back and neck of the
victim girl can safely be explained by the fact that she was lured
into the offence rather than being taken by using physical force
on her. The preparation, attempt and actual act on the part of
the accused is further clear from the fact that he had purchased
bangles which he had promised to her and thereafter had taken
her into the tennis court store room, the key of which was with
him. This is also corroborated from the fact that even vide Ext.
P-3, the lehenga as well as the bangles, coated with golden
colour were recovered by the Investigating Officer, S.M. Khaleel,
PW11.
* * * * *
12 2012 ALL MR (CRI) 575
13 (2013) 11 SCC 688
51 cr-appeal-336-16+4.odt
22. In order to establish a conflict between the ocular
evidence and the medical evidence, there has to be specific and
material contradictions. Merely because, some fact was not
recorded or stated by the doctor at a given point of time and
subsequently such fact was established by the expert report, the
FSL Report, would not by itself substantiate the plea of
contradiction or variation. The absence of injuries on the body
of the prosecutrix, as already explained, would not be of any
advantage to the accused.”
66. Concededly, the prosecutrix has admitted in her cross-
examination that semen spilled over her private part and on her
clothes. Whereas, the DNA report indicates absence of semen on the
leggings which the prosecutrix wore during the intervening night of
05.11.2014 and 06.11.2014. The DNA report further exhibits that the
DNA could not be amplified from the pubic hair, vaginal swab and
sputum sample of the prosecutrix. Further cross-examination of the
prosecutrix reveals that she has in categorical terms deposed that after
each sexual intercourse, she put on the leggings. This indicates that
before every sexual intercourse, the leggings were removed. In that
scenario, there is no question of presence of semen on the leggings
which has been duly dealt with by the Trial Court. Lastly, perhaps the
semen might have spilled on the inner-wear/underwear of the
prosecutrix which was not seized during the investigation and
therefore, it was not subjected to DNA analysis. Thus, in wake of the
version of the prosecutrix that on every occasion of sexual intercourse,
the leggings were removed, absence of semen on the leggings will not
be beneficial to Wasim and Kadir. Just because the underwear of the
52 cr-appeal-336-16+4.odt
prosecutrix was not seized, which is the fault of the Investigating
Officer, the benefit of doubt cannot be extended to the appellants. So
far as inconclusive DNA report of pubic hair, vaginal swab or sputum
sample are concerned, just because the DNA could not be amplified,
the prosecutrix cannot be blamed for it. Here is not a case of
contradiction between ocular and medical evidence so as to doubt the
testimony of the prosecutrix. Reference can be made to para 19 of the
decision in the case of Radhakrishna Nagesh (supra).
67. Before considering whether the sole testimony of the
prosecutrix can be relied upon, we must refer to the decisions of the
Supreme Court on this aspect. In the case of Deepshikha Vs. Vibha 14,
the Supreme Court has held as under:-
“a] Evidence of prosecutrix is entitled to great weight, even
in absence of corroboration. She is not an accomplice.
Corroboration is not a sine quo non for conviction in rape case.
b] Testimony of prosecutrix cannot be disbelieved even if
the doctor, in a given case, finds no sign of rape.
c] Court must deal such cases with utmost sensitivity. They
should examine insignificant discrepancies in the statement of
prosecutrix.
d] If totality of the circumstances appearing on record
discloses that prosecutrix does not have strong motive to falsely
involve the person charged, court should ordinarily have no
hesitation in accepting the evidence.”
68. In State of Maharashtra v. Chandraprakash Kewalchand
Jain15, the Supreme Court held that a woman who is the victim of
14 2008 ALL MR (CRI) 2583
15 (1990) 1 SCC 550
53 cr-appeal-336-16+4.odt
sexual assault is not an accomplice to the crime but is a victim of
another person’s lust and therefore, her evidence need not be tested
with the same amount of suspicion as that of an accomplice. The Court
observed as under: (SCC p. 559, para 16)
“16. A prosecutrix of a sex offence cannot be put on par with
an accomplice. She is in fact a victim of the crime. The
Evidence Act nowhere says that her evidence cannot be
accepted unless it is corroborated in material particulars. She is
undoubtedly a competent witness under Section 118 and her
evidence must receive the same weight as is attached to an
injured in cases of physical violence. The same degree of care
and caution must attach in the evaluation of her evidence as in
the case of an injured complainant or witness and no more.
What is necessary is that the court must be alive to and
conscious of the fact that it is dealing with the evidence of a
person who is interested in the outcome of the charge levelled
by her. If the court keeps this in mind and feels satisfied that it
can act on the evidence of the prosecutrix, there is no rule of
law or practice incorporated in the Evidence Act similar to
Illustration (b) to Section 114 which requires it to look for
corroboration. If for some reason the court is hesitant to place
implicit reliance on the testimony of the prosecutrix it may look
for evidence which may lend assurance to her testimony short
of corroboration required in the case of an accomplice. The
nature of evidence required to lend assurance to the testimony
of the prosecutrix must necessarily depend on the facts and
circumstances of each case. But if a prosecutrix is an adult and
of full understanding the court is entitled to base a conviction
on her evidence unless the same is shown to be infirm and not
trustworthy. If the totality of the circumstances appearing on
the 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
evidence.”
69. In State of U.P. v. Pappu 16, the Apex Court held that even
in a case where it is shown that the girl is a girl of easy virtue or a girl
is habituated to sexual intercourse, it may not be a ground to absolve
the accused from the charge of rape. It has to be established that
16 (2005) 3 SCC 594
54 cr-appeal-336-16+4.odt
consent was given by her for that particular occasion. Absence of injury
on the prosecutrix may not be a factor that leads the court to absolve
the accused. The Apex Court further held that conviction can be based
on the sole testimony of the prosecutrix and in case the court is not
satisfied with the version of the prosecutrix, it can seek other evidence,
direct or circumstantial, by which it may get assurance of her
testimony. The Court further held as under: (SCC p. 597, para 12)
“12. It is well settled that a prosecutrix complaining of having
been a victim of the offence of rape is not an accomplice after
the crime. There is no rule of law that her testimony cannot be
acted upon without corroboration in material particulars. She
stands at a higher pedestal than an injured witness. In the latter
case, there is injury on the physical form, while in the former it
is both physical as well as psychological and emotional.
However, if the court of facts finds it difficult to accept the
version of the prosecutrix on its face value, it may search for
evidence, direct or circumstantial, which would lend assurance
to her testimony. Assurance, short of corroboration as
understood in the context of an accomplice, would do.”
70. In State of Punjab v. Gurmit Singh 17, the Supreme Court
held that in cases involving sexual harassment, molestation, etc. the
court is duty-bound to deal with utmost sensitivity. Minor
contradictions or insignificant discrepancies in the statement of a
prosecutrix should not be a ground for throwing out an otherwise
reliable prosecution case. Evidence of a victim of sexual assault is
enough for conviction and it does not require any corroboration unless
there are compelling reasons for seeking corroboration. The court may
look for some assurances of her statement to satisfy judicial
17 (1996) 2 SCC 384
55 cr-appeal-336-16+4.odt
conscience. The statement of the prosecutrix is more reliable than that
of an injured witness as she is not an accomplice. The Court observed
as under: (SCC pp. 394 96 & 403, paras 8 & 21)
“8. … The court overlooked the situation in which a poor
helpless minor girl had found herself in the company of three
desperate young men who were threatening her and preventing
her from raising any alarm. Again, if the investigating officer
did not conduct the investigation properly or was negligent in
not being able to trace out the driver or the car, how can that
become a ground to discredit the testimony of the prosecutrix?
The prosecutrix had no control over the investigating agency
and the negligence of an investigating officer could not affect
the credibility of the statement of the prosecutrix. … The courts
must, while evaluating evidence, remain alive to the fact that in
a case of rape, no self respecting woman would come forward
in a court just to make a humiliating statement against her
honour such as is involved in the commission of rape on her. In
cases involving sexual molestation, supposed considerations
which have no material effect on the veracity of the prosecution
case or even discrepancies in the statement of the prosecutrix
should not, unless the discrepancies are such which are of fatal
nature, be allowed to throw out an otherwise reliable
prosecution case. … Seeking corroboration of her statement
before relying upon the same, as a rule, in such cases amounts
to adding insult to injury. … Corroboration as a condition for
judicial reliance on the testimony of the prosecutrix is not a
requirement of law but a guidance of prudence under given
circumstances. …
* * * * *
21. … The courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the prosecutrix,
which are not of a fatal nature, to throw out an otherwise
reliable prosecution case. If evidence of the prosecutrix inspires
confidence, it must be relied upon without seeking
corroboration of her statement in material particulars. If for
some reason the court finds it difficult to place implicit reliance
on her testimony, it may look for evidence which may lend
assurance to her testimony, short of corroboration required in
the case of an accomplice. The testimony of the prosecutrix
must be appreciated in the background of the entire case and
the trial court must be alive to its responsibility and be sensitive
while dealing with cases involving sexual molestations.”
(emphasis in original)
56 cr-appeal-336-16+4.odt
71. In State of Orissa v. Thakara Besra 18, the Supreme Court
held that rape is not mere a physical assault, rather it often distracts
(sic destroys) the whole personality of the victim. The rapist degrades
the very soul of the helpless female and therefore, the testimony of the
prosecutrix must be appreciated in the background of the entire case
and in such cases, even non-examination of other witnesses may not
be a serious infirmity in the prosecution case, particularly where the
witnesses had not seen the commission of the offence.
72. In State of H.P. v. Raghubir Singh 19, the Supreme Court
held that there is no legal compulsion to look for any other evidence to
corroborate the evidence of the prosecutrix before recording an order
of conviction. Evidence has to be weighed and not counted. Conviction
can be recorded on the sole testimony of the prosecutrix, if her
evidence inspires confidence and there is absence of circumstances
which militate against her veracity. A similar view has been reiterated
by the Supreme Court in Wahid Khan v. State of M.P.20 placing reliance
on an earlier judgment in Rameshwar v. State of Rajasthan21.
73. Thus, the law that emerges on the issue is to the effect
that the statement of the prosecutrix, if found to be worthy of credence
18 (2002) 9 SCC 86
19 (1993) 2 SCC 622
20 (2010) 2 SCC 9
21 AIR 1952 SC 54
57 cr-appeal-336-16+4.odt
and is reliable, requires no corroboration. The court may convict the
accused on the sole testimony of the prosecutrix.
74. In the case of Krishan Kumar Malik v. State of Haryana22, it
is observed and held by the Supreme Court that to hold an accused
guilty for commission of an offence of rape, the solitary evidence of the
prosecutrix is sufficient, provided the same inspires confidence and
appears to be absolutely trustworthy, unblemished and should be of
sterling quality.
75. Who can be said to be a “sterling witness”, has been dealt
with and considered by the Supreme Court in the case of Rai Sandeep
alias Deepu v. State (NCT of Delhi)23. In paragraph 22, it is observed
and held as under:
“22. In our considered opinion, the “sterling witness” should
be of a very high quality and calibre whose version should,
therefore, be unassailable. The court considering the version of
such witness should be in a position to accept it for its face value
without any hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what would be
relevant is the truthfulness of the statement made by such a
witness. What would be more relevant would be the consistency
of 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
crossexamination 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 corelation with
22 (2011) 7 SCC 130
23 (2012) 8 SCC 21
58 cr-appeal-336-16+4.odteach 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 12 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.”
76. What is deduced from the decisions of the Supreme Court
referred above is that in case of rape, the Court must while evaluating
the evidence stay mindful of the facts of the case. The evidence of the
victim is on the highest pedestal and is to be treated at par with that of
an injured witness. Corroboration is not a sine qua non for recording
conviction in a rape case. The conviction can solely be based on the
evidence of the victim, if it is trustworthy, unblemished and of a
sterling quality.
77. In the light of the legal principles discussed above, we will
now consider whether it is safe to convict the accused solely on the
evidence of the prosecutrix in absence of supporting medical evidence
59 cr-appeal-336-16+4.odt
and whether the evidence of the prosecutrix inspires confidence, is
trustworthy, unblemished and of a sterling quality.
78. From the version of the prosecutrix, it is revealed that
after putting Dinesh on the Railway track, Wasim, Kadir and the
juvenile in conflict with law took her to Nagpur Road and halted their
vehicle near a Dhaba. Wasim and Kadir alighted from the vehicle and
went towards the Dhaba. The juvenile in conflict with law made
physical relations with the prosecutrix and thereafter, proceeded
ahead. At about 4:30 am in the jungle, they made the prosecutrix
descend from the vehicle. Wasim committed sexual intercourse with
the prosecutrix and thereafter, Kadir also committed sexual intercourse
with her. The third incident of rape, according to the prosecutrix, was
at about 9:00 to 9:30 am between chhota Shegaon and Tadoba road
where they made her get down from the vehicle and thereafter, Wasim
and Kadir had sexual intercourse with her. Dr. Dipti Shrirame (PW10),
who clinically examined the prosecutrix has found two injuries on the
person of the prosecutrix i.e. abrasion over right elbow and contusion
below right eye with swelling. On genital examination of the
prosecutrix, she found that her hymen was torn as a result of an old
injury and two fingers were easily inserted. Ultimately, she opined that
the prosecutrix was subjected to sexual intercourse. She also took
60 cr-appeal-336-16+4.odt
blood sample, vaginal swab and pubic hair of the prosecutrix and
sealed it.
79. The incident inside the room has been duly proved by the
prosecution wherein the prosecutrix and Rakesh were stripped and
were made to give posses in sexually compromising positions. Rakesh
was asked to go and Dinesh and the prosecutrix were abducted by
Wasim, Kadir and the juvenile in conflict with law and they were taken
away in the car. They put Dinesh on the Railway track and thereafter,
took the prosecutrix along with them towards to Nagpur- Chandrapur
road, in particular, Tadoba.
80. Further, the version of Rupesh Pande (PW19), who on
06.11.2014, at the instance of Goldi and Jobi took the Tata Sumo car to
Sindewahi and brought Wasim, Kadir and the juvenile in conflict with
law reveals that at Adilabad, Wasim and Kadir alighted whereas, the
juvenile in conflict with law, after noticing that the Police vehicle was
following their Tata Sumo, fled away whereas Rupesh Pande (PW19)
Goldi and Jobi were caught by the Police squad which was searching
for them after receipt of the information of the incident. All this
material cogently establishes that after putting Dinesh on the Railway
track, Wasim, Kadir and the juvenile in conflict with law took the
prosecutrix in their car.
61 cr-appeal-336-16+4.odt
81. The prosecutrix narrated the incident of repeated sexual
intercourse by the three and gave a detailed account of the possible
events. The version of the prosecutrix on the incident that happened
prior to the gang rape is fully corroborated by other clinching and
cogent evidence. There is no reason to doubt her testimony over the
incident of gang rape. The factum of snapping photographs and
recording videos of the prosecutrix and Rakesh in naked and
compromising positions by Wasim clearly establishes that Wasim and
Kadir took the prosecutrix into the jungle, leaving Dinesh on the
Railway track, with a perverted mindset to exploit her sexually. This
also supports the constant version of the prosecutrix on gang rape
committed by the three of them. Just because she could not tell the
route and the place of incident of rape in the jungle, her evidence can
not be discarded. One cannot remain oblivious to the fact that the
prosecutrix was taken into the dense forest near Tadoba and chhota
Shegaon in the night. That apart, she was inebriated and therefore,
was not fully conscious. The incident happened at night in a dense
forest near Tadoba. In such a scenario, it cannot be expected from a
frightened woman to remember the route and the spot of incident in a
dense forest, more particularly at night. Though, there are some minor
contradictions and discrepancies in the version of the prosecutrix but
they do not make her version unreliable.
62 cr-appeal-336-16+4.odt
82. In the case of Sham Singh Vs. State of Haryana24, the
Supreme Court has held as under:-
“6. We are conscious that the courts shoulder a great
responsibility while trying an accused on charges of rape. They
must deal with such cases with utmost sensitivity. The courts
should examine the broader probabilities of a case and not get
swayed by minor contradictions or insignificant discrepancies in
the statement of the prosecutrix, which are not of a fatal nature,
to throw out an otherwise reliable prosecution case. If the
evidence of the prosecutrix inspires confidence, it must be
relied upon without seeking corroboration of her statement in
material particulars. If for some reason the court finds it
difficult to place implicit reliance on her testimony, it may look
for evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the court must be alive to its
responsibility and be sensitive while dealing with cases
involving sexual molestations or sexual assaults. [see State of
Punjab vs. Gurmit Singh, [(1996) 2 SCC 384] (para21).”
83. We find that the prosecutrix has passed the test of a
sterling witness as held in the case of Rai Sandeep @ Deepu (supra).
The version of the prosecutrix on repeated sexual intercourse is
reliable and can be safely acted upon particularly, considering the fact
that the prosecutrix lodged the first information report on the very
next day. The version of the prosecutrix is found to be consistent right
from the incident near the room; inside the room and outside the
room. Her version matched with the version of every other witness
and other evidence. The Trial Court has rightly considered her
evidence as worthy of credit.
24 (2018) 18 SCC 34
63 cr-appeal-336-16+4.odt
“NO MEANS NO”
84. An attempt has been made to question the morals of the
prosecutrix. No doubt, the prosecutrix was an estranged wife and
without getting divorced from her husband, she was residing with
Dinesh. Even from her evidence, this material was brought in her
cross-examination to suggest that she had an intimate relationship with
Wasim before she started residing with Dinesh in a live-in-relationship
inspite of the fact that her previous marriage was subsisting. Even
then, a person cannot force a woman to have intercourse with him
without her consent.
85. We feel it appropriate to state that rape in its simplest
term is “Ravishment of a woman without her consent by force, fear or
fraud.” Sexual violence diminishes law and thus, unlawfully
encroaches on the privacy of a woman. Rape cannot be treated only as
a sexual crime but it should be viewed as a crime involving aggression
which leads to the domination of the prosecutrix. It is a violation of
her right of privacy. Rape is the most morally and physically
reprehensible crime in society, as it is an assault on the body, mind and
privacy of the victim. Rape objectifies a woman and thereby shakes
the very core of her life. Sexual intercourse on one hand gives
pleasure to the participants including a woman but if it is done without
consent of the woman, it is an assault on her body, mind and privacy.
64 cr-appeal-336-16+4.odt
Therefore, it is an offence if sexual intercourse is done without the
consent of a major woman of the age of 18 years and above. A woman
who says “NO” means “NO”. There exists no further ambiguity and
there could be no presumption of consent based on a woman’s so
called “immoral activities”. Therefore, even though there may have
been a relationship between the prosecutrix and Wasim in the past but
if the prosecutrix was not willing to have sexual intercourse with
Wasim, his colleague Kadir and the juvenile in conflict with law, any
act without her consent would be an offence within the meaning of
Section 375 of the IPC. A woman who consents to sexual activities
with a man at a particular instance does not ipso facto give consent to
sexual activity with the same man at all other instances. A woman’s
character or morals are not related to the number of sexual partners
she has had in wake of Section 53A of the Indian Evidence Act. The
intimacy, if any, will not absolve Wasim, at the most, this will be
relevant while considering the punishment. Thus, we are of the
opinion that the Trial Court was right in holding that the prosecution
has proved that Wasim and Kadir have committed the offence of gang
rape punishable under Section 376D of the IPC.
86. Sofar as conviction recorded by the Trial Court against
Wasim and Kadir for the offence punishable under Section 506-II of the
IPC is concerned, the learned Judge relied on the version of the
65 cr-appeal-336-16+4.odt
prosecutrix that Wasim and Kadir were discussing amongst themselves
that the prosecutrix will go to the Police and will lodge a complaint
against them. Therefore, it is better to kill her. From this version it is
not clear whether they really threatened her as they were merely
discussing amongst themselves. Even otherwise, the fact deposed by
the prosecutrix does not suggest that they threatened her with an
intention to cause her not to lodge the complaint against them.
Therefore, the ingredients of criminal intimidation are not made out.
We hold that the conviction recorded by the Trial Court against Wasim
and Kadir for the offence punishable under Section 506-II of the IPC is
not sustainable.
87. Sofar as the material against Jobi is concerned, the version
of Rupesh Pande (PW19) is abundantly clear on the fact that he, on the
pretext of medical emergency, asked him to accompany them to pick
up Wasim, Kadir and the juvenile in conflict with law with intent to
protect them from arrest. The reason for visiting Sindewahi is itself
evident that he was harboring Wasim, Kadir and the juvenile in conflict
with law with intention of protecting them from legal punishment.
CONCLUSION
88. To conclude, the Trial Court has rightly held Maksud guilty
for the offence punishable under Sections 450, 452, 354A and 354B
66 cr-appeal-336-16+4.odt
r/w Section 34 of the IPC and Section 66E of the IT Act except for the
offence punishable under Sections 506-II and 326 of the IPC.
89. The conviction of Wasim for the offence punishable under
Sections 450, 452, 366, 354A, 354B, 354C, 376D, 307, 201, 394 r/w.
34 of the IPC as well as conviction under Section 66E of the IT Act r/w.
Section 34 of the IPC is completely justified except for the offence
punishable under Section 506-II and 326 of the IPC. Conviction under
Section 326 of the IPC is converted into Section 324 of the IPC.
90. Likewise, the conviction of Kadir for the offences
punishable under Sections 450, 452, 366, 354A, 354B, 376D, 307 and
394 r/w. 34 of the IPC as well as Section 66E of the IT Act is upheld.
His conviction under Section 326 of the IPC is converted into Section
324 of the IPC and he is acquitted under Section 506-II of the IPC.
Thus, Maksud, Wasim and Kadir are guilty for the offence punishable
under Section 324 of the IPC.
91. We also concur with the findings of the Trial Court
convicting appellant- Jobi for the offence punishable under Section 212
r/w Section 34 of the IPC. However, we could not endorse the
conviction imposed by the Trial Court on Siraj. We give him the
benefit of doubt.
67 cr-appeal-336-16+4.odt
PUNISHMENT
92. Now, we propose to examine the punishment imposed by
the Trial Court. In the case of State of M.P. Vs. Munna Choubey 25, in
para nos. 12 and 13, it has been held as under:-
“12. Proportion between crime and punishment is a goal
respected in principle, and in spite of errant notions, it remains
a strong influence in the determination of sentences. The
practice of punishing all serious crimes with equal severity is
now unknown in civilized societies, but such a radical departure
from the principle of proportionality has disappeared from the
law only in recent times. Even now for a single grave infraction
drastic sentences are imposed. Anything less than a penalty of
greatest severity for any serious crime is thought then to be a
measure of toleration that is unwarranted and unwise. But in
fact, quite apart from those considerations that make
punishment unjustifiable when it is out of proportion to the
crime, uniformly disproportionate punishment has some very
undesirable practical consequences.
13. After giving due consideration to the facts and
circumstances of each case, for deciding just and appropriate
sentence to be awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime has been
committed are to be delicately balanced on the basis of really
relevant circumstances in a dispassionate manner by the Court.
Such act of balancing is indeed a difficult task. It has been very
aptly indicated in Dennis Councle McGDautha v. State of
Callifornia: [402 US 183] that no formula of a foolproof nature
is possible that would provide a reasonable criterion in
determining a just and appropriate punishment in the infinite
variety of circumstances that may affect the gravity of the
crime. In the absence of any foolproof formula which may
provide any basis for reasonable criteria to correctly assess
various circumstances germane to the consideration of gravity
of crime, the discretionary judgment in the facts of each case, is
the only way in which such judgment may be equitably
distinguished.”
93. Maksud, Wasim and Kadir have already undergone the
sentence imposed for the offences punishable under Sections 450, 452,
354A, 354B, 354C and 366 of the IPC. The defense has also not
25 (2005) 2 SCC 710
68 cr-appeal-336-16+4.odt
pressed much for reduction of the sentence in these offences but Mr.
Bobde, learned counsel appearing on behalf of Wasim and Shri Tiwari,
learned counsel appearing on behalf of Kadir submitted that there are
mitigating circumstances which require consideration for reduction in
the sentence imposed by the Trial Court. Mr. Bobde, learned counsel
appearing on behalf of Wasim submitted that the prosecutrix was
known to Wasim, rather there was an intimate relationship between
them. Also, Wasim has a daughter who needs her father around. When
the offence was committed, he was in his thirties and has suffered the
sentence for more than 10 years. Nothing has been reported by the
Jail Authority regarding the conduct of Wasim and Kadir. There are no
criminal antecedents of Wasim and Kadir. This is their first offence and
therefore, the incident which occurred was not pre-planned and
because of the peculiar circumstances, Wasim and Kadir committed the
act. Therefore, it is submitted that a lenient view may be taken and
their punishment be reduced to the extent of the period which they
have already undergone.
94. The Trial Court sentenced Wasim and Kadir for
imprisonment for life for the offence punishable under Section 307 of
the IPC and for remainder of their natural life for the offence
punishable under Section 376D of the IPC. We are mindful of the fact
that rape is a heinous crime much less gang rape and it is an offence
69 cr-appeal-336-16+4.odt
against the vulnerable section of the society i.e. woman hence, the
offender of such a crime is to be dealt with heavy hands.
95. One of the principles of punishment is that punishment
should be proportionate with the crime and shall be awarded
according to the offence. For deciding the appropriate sentence, a
balance has to be maintained between the aggravating and mitigating
circumstances in which the crime has been committed. Imposition of
punishment in a rape case depends upon the degree of atrocity of
crime, conduct of the criminal and the defenseless and unprotected
state of the victim.
96. Turning to the present case, from the tenor and version of
the prosecutrix, it is revealed that Wasim and the prosecutrix knew
each-other. Rather, it appears that there was an intimate relationship
between the prosecutrix and Wasim due to which Wasim’s family life
was disturbed. The prosecutrix started residing with Dinesh due to
which Wasim got jealous and every now and then an attempt was
made by Wasim to make sure that the prosecutrix should be physically
involved only with him and nobody else. He could not succeed and the
incident of the prosecutrix with Maksud gave him a reason to give a
design to the crime, which he then committed. It is also a matter of
record that Wasim and Kadir did not cause any grievous injury to the
70 cr-appeal-336-16+4.odt
prosecutrix during the incident. Considering the above facts and the
fact that Wasim has a daughter who needs her father around; and that
no incident of misbehavior or cruelty is reported by the Jail Authority,
we propose to reduce the imprisonment of Wasim and Kadir from
imprisonment for remainder of their natural life to rigorous
imprisonment for 20 years.
97. Likewise, considering the facts and circumstances of the
case as well as the injury on the person of Dinesh, we also reduce the
sentence of imprisonment for life to rigorous imprisonment for 10
years for the offence punishable under Section 307 of the IPC.
98. Sofar as Jobi is concerned, Mr. Vyas his learned counsel
prayed for leniency. Considering his age and the fact that he was
working under Wasim due to which he obeyed the orders of his master,
imprisonment for 3 years is reduced to the period of the imprisonment
which he has already undergone. Resultantly, we proceed to pass the
following order:-
i) Criminal Appeal Nos. 325/2016, 336/2015, 346/2015 and
352/2016 are partly allowed.
ii) The conviction of Maksud Sheikh Gaffur Sheikh and the
sentence as well as the fine imposed upon him for the offence
71 cr-appeal-336-16+4.odtpunishable under Section 450, 452, 354A and 354B r/w. Section 34 of
the IPC and under Section 66E of the IT Act are maintained. His
conviction under Section 326 r/w Sections 34, 149, 109 and 114 of the
IPC is altered to Section 324 r/w. 34 of the IPC and he is sentenced to
suffer rigorous imprisonment for 3 years with fine as imposed by the
Trial Court. All the sentence shall run concurrently.
iii) The conviction of Wasim Khan Ajim Khan and the sentence
and fine imposed upon him for the offence punishable under Sections
394, 201, 450, 452, 366, 354A, 354B and 354C r/w. 34 of the IPC and
Section 66E of the IT Act are maintained. His conviction under Section
326 r/w. Sections 34, 149, 109 and 114 of the IPC is altered to Section
324 r/w. 34 of the IPC and he is sentenced to suffer rigorous
imprisonment for 3 years with fine as imposed by the Trial Court. All
the sentence shall run concurrently.
iv) The conviction of Sheikh Kadir Sheikh Jakir and the
sentence as well as fine imposed upon him for the offences punishable
under Sections 450, 452, 354A and 354B, 366 and 394 r/w. Sections
34 of the IPC and under Section 66E of the IT Act are maintained. His
conviction under Section 326 r/w. Sections 34, 149, 109 and 114 of
the IPC is altered to Section 324 r/w. 34 of the IPC and he is sentenced
72 cr-appeal-336-16+4.odt
to suffer rigorous imprisonment for 3 years with fine as imposed by the
Trial Court. All the sentence shall run concurrently.
v) The conviction of Wasim Khan Ajim Khan and Sheikh
Kadir Sheikh Jakir for the offence punishable under Section 307 r/w.
34 of the IPC is maintained. However, rigorous imprisonment for life is
reduced to rigorous imprisonment for 10 years with the fine imposed
by the Trial Court.
vi) The conviction of Wasim Khan Ajim Khan and Sheikh
Kadir Sheikh Jakir for the offence punishable under Section 376D of
the IPC is also maintained. However, the sentence is reduced from
rigorous imprisonment for remainder of their natural life to rigorous
imprisonment for 20 years with fine as imposed by the Trial Court.
vii) Appellant Sirajkhan Pathan @ Raja Shaadat Khan Pathan
is acquitted of the offences punishable under Sections 326, 450, 452,
354B r/w Sections 34, 149, 109, 114 of the IPC alongwith Section 66E
of the IT Act r/w Sections 34, 149, 109 and 114 of the IPC.
viii) The conviction and sentence imposed on Jobi Ashokan
Welythan for the offence punishable under Section 212 r/w. 34 of the
IPC is maintained. However, his sentence of rigorous imprisonment
73 cr-appeal-336-16+4.odt
for 3 years is reduced to the period which he has already
undergone.
ix) The conviction of Maksud Sheikh Gaffur Sheikh, Wasim
Khan Ajim Khan and Sheikh Kadir Sheikh Jakir and the sentence and
fine imposed upon them for the offences punishable under Section
506(II) r/w Sections 34, 109 and 114 of the IPC is hereby set aside and
they are acquitted of the said offences.
x) Accused are entitled for set off in terms of Section 428 of
the Criminal Procedure Code, for the period already undergone.
xi) Needless to mention that the juvenile in conflict with law
has been tried separately and therefore, the observations with regard
to the juvenile in conflict with law are limited to the extent of deciding
the present appeals and will not affect his case.
In the above said terms, the appeals are disposed of.
(M. W. CHANDWANI, J.) (NITIN B. SURYAWANSHI, J.)
RR Jaiswal
Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 07/05/2025 18:35:46
[ad_2]
Source link